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Americar 

Its  Origin 
Charli 

Professor  of 

With  Two  1 
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G.  P. 

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s  of  America 


THIS  BOOK  Is  INSCRIBED 

WITH   DEEPEST   AFFECTION   AND   RESPECT 
TO   THE   MEMORY  OF 

MY  FATHER 


504;; 


PREFACE 

THE  American  federal  system  is  based  upon  the  Consti- 
tution of  the  United  States.  That  instrument  was  adopted 
to  make  "more  perfect"  the  union  which  having  had  its 
beginning  in  the  common  allegiance  of  the  colonies  to  the 
British  Crown,  during  the  war  for  independence,  was  welded 
closer  by  the  necessity  for  common  acrgion  and  found  it 
first  constitutional  expression  in  the  Articles  of  Confedera- 
tion. Nineteen  articles  of  amendment  have  been  added  to 
the  Constitution  in  the  hundred  and  thirty-four  years  since 
its  adoption.  It  is  hoped  that  in  the  first  three  chapters 
of  this  book  a  clear  picture  is  given  of  the  making  of  the 
Constitution,  of  the  nature  of  the  federal  system  which  was 
set  up,  and  of  the  principles  which  underly  the  amending 
power. 

The  Constitution  of  the  United  States  first  of  all  estab- 
lishes a  national  government,  and  sets  off  to  it  certain  fields 
in  which  it  shall  be  supreme,  at  the  same  time  imposing 
upon  it  certain  specific  prohibitions  and  restrictions.  It 
was,  however,  very  far  from  the  purpose  of  the  framers  of 
that  instrument  to  do  away  with  the  separate  States  or  to 
reduce  them  to  mere  administrative  units.  Yet  the  grants 
of  powers  to  the  national  government  did  of  necessity 
operate  as  limitations  upon  the  previous  sovereign  powers 
of  the  States;  and  to  these  implied  limitations  were  added 
others  which  are  express.  In  the  second  part  of  this  book, 
I  have  dealt  with  the  national  government  in  its  executive, 
judicial,  and  legislative  departments,  discussing  the  powers 
which  are  granted  to  each  of  them,  and  the  limitations  which 
are  placed  upon  their  activities.  In  part  three  are  con- 
sidered the  restrictions  placed  upon  the  States,  and  the 
extent  of  the  powers  which  may  still  be  exercised  by  them. 


vi  PREFACE 

It  is  believed  that  this  is  a  logical  method  of  treatment,  and 
it  is  hoped  that  it  will  help  to  make  clear  the  division 
of  powers  between  the  national  and  state  governments 
under  our  federal  system.  No  attempt  has  been  made  to 
treat  of  the  powers  of  the  States  under  their  individual 
constitutions. 

Among  the  most  admirable  features  of  the  Constitution 
of  the  United  States  are  its  brevity,  and  the  self-restraint 
shown  by  its  authors  in  being  content  to  lay  down  general 
principles  of  government,  rather  than  attempting  to  deal 
in  detail  with  the  application  of  those  principles.  This  has 
resulted  of  necessity  in  the  development  of  a  very  large 
body  of  "unwritten"  constitutional  law — rules  with  regard 
to  constitutional  powers  and  limitations  which  cannot  be 
found  expressly  set  forth  in  the  Constitution  itself,  but 
which  have  been  held  by  the  courts  to  result  by  reasonable 
implication  from  the  express  terms  of  that  instrument. 
Such  for  example  is  the  character  of  the  law  with  regard  to 
the  powers  of  the  President  as  Chief  Executive,  the  power 
of  the  federal  courts  to  annul  congressional  legislation,  and 
the -power  of  the  national  government  to  acquire  and  govern 
territories  and  to  issue  legal  tender  notes;  with  regard  to 
the  war  powers  of  Congress,  and  the  power  of  Congress  to 
enact  a  body  of  police  regulations  under  the  commerce 
clause  and  the  clause  dealing  with  taxation;  with  regard  to 
the  meaning  of  the  limitations  put  upon  the  national  govern- 
ment in  the  bill  of  rights  contained  in  the  first  eight  amend- 
ments ;  and  with  regard  to  the  limitations  as  to  the  impair- 
ment of  contracts,  as  to  due  process  of  law,  and  as  to 
the  equal  protection  of  the  laws  imposed  upon  the  States. 
Naturally  this  book  deals  very  largely  with  that  body  of 
constitutional  law  developed  by  judicial  interpretation, 
and  it  has  been  my  effort  to  make  clear  the  nature  and 
extent  of  that  development. 

This  book  makes  no  pretense  of  being  a  digest  of  all  of  the 
cases  on  constitutional  law.  It  is  believed,  however,  that 
the  cases  which  have  established  or  developed  important 
constitutional  principles  are  discussed  and  that  sufficient 


PREFACE  vii 

illustrative  cases  have  been  considered  to  make  plain  the 
various  points  which  are  dealt  with.  The  records  of  the 
Constitutional  Convention  have  been  often  referred  to  for 
the  purpose  of  showing  the  history  of  various  provisions  in 
the  Constitution,  and  frequent  references  have  been  made 
to  treaties,  to  articles,  and  to  notes  in  legal  periodicals. 
Some  comparisons  are  also  drawn  between  our  constitu- 
tional provisions  and  the  provisions  in  the  constitutions  of 
the  British  Dominions. 

My  father,  Francis  M.  Burdick,  after  his  retirement 
from  teaching,  had  had  in  plan  the  preparation  of  a  book  on 
the  Constitution.  I  have  used  with  very  little  alteration  as 
the  first  two  chapters  of  this  book  the  only  chapters  com- 
pleted by  him.  I  have  also  in  my  possession  the  further 
notes  which  he  had  made,  and  acknowledge  my  indebtedness 
to  them  for  a  number  of  suggestions.  I  must,  however,  as- 
sume full  responsibility  for  all  of  the  chapters  after  the  first 
two,  since  these  are  entirely  the  result  of  my  independent 
labors.  It  is  a  very  real  satisfaction  to  have  the  last  of  my 
father's  writing  combined  with  my  own  in  this  volume,  and 
to  feel  the  mental  companionship  with  him  which  comes 
from  our  having  worked  in  the  same  field. 


C.  K.  B. 


CORNELL  UNIVERSITY, 
February,  1922. 


CONTENTS 


PART  I 
MAKING  AND  AMENDING  THE  CONSTITUTION 

CHAPTER  I 

PAGE 

ORIGIN  OF  THE  CONSTITUTION        ....        3 

§  I.  The  Constitution  and  its  Framers.  §2.  The  Back- 
ground of  the  Constitutional  Convention.  §  3.  The 
Constitutional  Convention.  §  4.  The  Adoption  of  the  Con- 
stitution. §.  5.  The  Constitution  Put  into  Operation. 
§  9.  The  Revolutionary  Character  of  the  .Constitution 
Adopted.  §  7.  The  Constitution  as  a  Product  of  Practi- 
cal Experience.  §  8.  The  Critics  of  the  Constitution. 

CHAPTER  II 

UNION  UNDER  THE  CONSTITUTION.         ...      23 

§  9.  Union  of  the  Colonies  under  the  Crown.  §  10.  Union  for 
Defense.  §11.  Union  under  the  Articles  of  Confedera- 
tion. §  12.  Weaknesses  of  the  Union  under  the  Articles  of 
Confederation.  §  13.  A  "More  Perfect  Union"  under  the 
Constitution.  §  14.  The  Doctrine  of  States'  Rights  and 
Secession.  §  15.  The  Constitution  Looks  to  an  Indissoluble 
Union.  §  16.  Some  Comparisons  with  the  Constitutions  of 
Canada  and  Australia. 

CHAPTER  III 
AMENDING  THE  CONSTITUTION        ....       34 

§  17.  Methods  of  Changing  Constitutions.  §  18.  The  Con- 
stitutional Provision  for  Amendment.  §  19.  Proposal  of 
Amendment's.  §  20.  Ratification  of  Amendments.  §21. 
Express  Limitations  on  Power  to  Amend.  §  22.  Are  There 

ix 


x  CONTENTS 

PAGE 

Implied  Limitations  upon  the  Power  to  Amend?     §  23. 
The  Exercise  of  the  Amending  Power. 

PART  II 
THE  NATIONAL  GOVERNMENT 

CHAPTER  IV 
THE  PRESIDENT 53 

§  24.  Term  and  Qualifications  of  President  and  Vice-President. 
§  25.  Election  of  President  and  Vice-President.  §  26. 
When  the  Office  of  President  Becomes  Vacant.  §  27. 
Compensation  and  Oath  of  Office  of  President.  §  28.  The 
President  as  Commander-in-Chief.  §  29.  The  President's 
Power  of  Appointment  and  Removal.  §  30.  The  President 
and  His  Cabinet.  §  31.  The  President  as  the  Chief  Execu- 
tive. §  32.  Reprieves  and  Pardons.  §  33.  The  President's 
Treaty-Making  Power.  §34.  The  Scope  of  the  Treaty- 
Making  Power.  §  35.  The  President's  Power  to  Direct 
International  Affairs.  §  36.  International  Extradition. 
§37.  The  President's  Part  in  Law  Making.  §38.  The 
President's  Power  to  Convene  and  Adjourn  the  Houses  of 
Congress.  §  39.  Suspension  of  the  Writ  of  Habeas  Corpus. 
§  40.  Impeachment. 

CHAPTER  V 

THE  JUDICIARY     .......      90 

§41.  Constitution  and  Tenure  of  the  Federal  Judiciary.  §42. 
Original  Jurisdiction  of  the  Supreme  Court  of  the  United 
States.  §  43.  Appellate  Jurisdiction  of  the  Supreme  Court 
of  the  United  States.  §  44.  Jurisdiction  of  District  Courts. 
§  45.  Admiralty  and  Maritime  Jurisdiction.  §  46.  Juris- 
diction of  Circuit  Courts  of  Appeals.  §  47.  Jurisdiction 
of  the  Court  of  Claims.  §  48.  Is  There  a  Common  Law  of 
the  United  States?  §  49.  Judicial  Review  of  Legislation. 
§50.  Judicial  Control  of  Executive  Action.  §51.  The 
Supreme  Court's  Attitude  Towards  Political  Questions. 
§52.  Judicial  Functions  Confined -to  "Cases"  and  "Con- 
troversies." §  53.  Control  by  Congress  of  the  Jurisdiction 
of  the  Supreme  Court.  §  54.  Imposing  Non- judicial 
Functions  upon  the  Lower  Federal  Courts.  §  55.  Legis- 
lative Control  of  Pending  Actions.  §  56.  Punishment  of 
Contempts.  §  57.  Judicial  Power  to  Suspend  Sentences. 


CONTENTS  xi 

CHAPTER  VI 

PAGE 

GENERAL     CHARACTER     AND     ORGANIZATION     OF 

CONGRESS      .......     143 

§  58.  Legislative  Power  and  the  Separation  of  Powers.  §  59. 
Implied  Powers  and  Constitutional  Interpretation.  §  60. 
Delegation  of  Legislative  Power.  §  61.  Congress  a  Bi- 
cameral Legislature.  §  62.  Powers  of  the  Two  Houses. 
§  63.  Election  of  Representatives.  §  64.  Qualifications  of 
Representatives.  §  65.  Choice  of  Speaker  and  Other 
Officers  by  the  House  of  Representatives.  §  66.  Election 
and  Terms  of  Senators.  §  67.  Qualifications  of  Senators. 
§  68.  Officers  of  the  Senate.  §  69.  Legislative  Sessions  of 
Congress.  §  70.  Determination  of  Elections,  Returns  and 
Qualifications  of  Members.  §  71.  Punishment  of  Members 
and  of  Those  Guilty  of  Contempts.  §  72.  Adjournment. 
§  73.  Compensation  of  Members  of  Congress.  §  74.  Im- 
munities of  Members  of  Congress.  §  75.  Disability  of 
Members  of  Congress.z  to  Hold  Other  Offices. 

CHAPTER  VII 

TAXATION  AND  OTHER  FISCAL  POWERS  OF  CONGRESS    180 

§  76.  Power  to  Tax.  §  77.  Constitutional  Purposes  of  Taxa- 
tion. §  78.  Taxation  for  Regulation.  §  79.  Direct  Taxes. 
§80.  Uniformity  in  Taxation.  §81.  Taxes  on  Exports. 
§  82.  Miscellaneous  Limitations.  §  83.  Power  to  Borrow 
Money,  Coin  Money,  and  Issue  Legal  Tender  Notes.  §  84. 
Publicity  in  the  Expenditure  of  Public  Moneys. 

CHAPTER  VIII 

INTERSTATE  AND  FOREIGN  COMMERCE    .         .         .     206 

§  85.  The  Commerce  Clause.  §  86.  What  is  Commerce?  §  87. 
The  Commencement  and  Termination  of  Interstate  and 
Foreign  Commerce.  §  88.  Congressional  Power  Over 
Foreign  Commerce.  §  89.  Congressional  Power  Over  Com- 
merce with  the  Indian  Tribes.  §  90.  Protection  of  Inter- 
state Transportation  and  Traffic.  §91.  Police  Regulations 
under  the  Commerce  Power.  §  92.  Divesting  Goods  of 
Interstate  Character.  §93.  Incidental  Regulation  ^f 
Interstate  Commerce.  §94.  State  Police  Legislation 
Affecting  Interstate  Commerce.  §  95.  State  Taxation 
Affecting  Interstate  Commerce. 


xii  CONTENTS 

CHAPTER  IX 

PAGE 

WAR  POWERS  AND  CONTROL  OF  MILITARY  AFFAIRS    255 

§  96.  War  and  Peace.  §  97.  Raising  Military  Forces.  §  98. 
Courts-Martial  and  Martial  Law.  §  99.  Unusual  Powers 
in  Time  of  War. 

CHAPTER  X 

FEDERAL   TERRITORY,   ADMISSION   OF   STATES  AND 

STATUS  OF  INDIANS 272 

§  100.  General  Power  to  Acquire  Territory.  §  101.  Power  of 
Congress  to  Govern  Territories.  §  102.  Does  Annexation 
Bring  Territories  within  the  Scope  of  Existing  Federal 
Legislation?  §  103.  Territories  and  the  Constitutional 
Guaranties.  §  104.  When  Is  a  Territory  Incorporated  into 
the  United  States?  §  105.  The  District  of  Columbia. 
§  1 06.  Admission  of  States.  §  107.  Status  and  Control  of 
Indians. 

CHAPTER  XI 
CITIZENSHIP  AND  NATURALIZATION         .         .         .318 

§  1 08.  Dual  Citizenship  Recognized  by  the  Constitution.  §  109. 
United  States  Citizenship  Originally  Derived  from  State 
Citizenship.  §  no.  Power  and  Effect  of  Naturalization. 
§  in.  State  Citizenship  now  Derived  from  United  States 
Citizenship.  §  112.  Persons  Who  Become  Citizens  by 
Birth.  §113.  One  May  be  a  United  States  Citizen  and 
Not  a  Citizen  of  a  State.  §  114.  Nationals  Who  are 
Not  Citizens.  §  115.  Expatriation.  §  116.  Privileges 
and  Immunities  of  State  Citizenship  and  United  States 
Citizenship  Are  Not  the  Same.  §  117.  Guaranties  of  the 
First  Eight  Amendments  Are  Not  Privileges  and  Immuni- 
ties of  United  States  Citizenship.  §  118.  What  Are 
Privileges  and  Immunities  of  United  States  Citizenship? 
§  119.  What  are  Not  Privileges  and  Immunities  of  United 
States  Citizenship?  §  120.  Privileges  and  Immunities  of 
Citizenship  are  Protected  against  State  Action. 

CHAPTER  XII 

MISCELLANEOUS  POWERS 337 

§  121.  Bankruptcy.  §  122.  Patents,  Copyrights,  and  Trade 
Marks.  §  123.  Postal  Service.  §  124.  Weights  and  Measures. 


CONTENTS  xiii 

CHAPTER   XIII 

PAGE 

FREEDOM     OF     RELIGION,     SPEECH,     PRESS     AND 

ASSEMBLY 342 

§  125.  Religious  Freedom.  §  126.  Freedom  of  Speech  and  of 
the  Press  under  the  Common  Law.  §  127.  Freedom  of 
Speech  and  of  the  Press  under  the  Constitution.  §  128. 
Control  of  Freedom  of  the  Press  under  the  Postal  and  Inter- 
state Commerce  Powers.  §  129.  Censorship.  §  130. 
Right  of  Assembly  and  of  Petition. 

CHAPTER  XIV 
THE  SECOND  AND  THIRD  AMENDMENTS  .         .         .     375 

§  131.  The  Second  Amendment.  §  132.  The  Third  Amend- 
ment. 

CHAPTER  XV 

FEDERAL  CRIMINAL  LAW  AND  SAFEGUARDS  OF  THOSE 

ACCUSED  OF  CRIME 378 

§  133.  Federal  Criminal  Law.  §  134.  Habeas  Corpus.  §  135 
Ex  Post  Facto  Laws  and  Bills  of  Attainder.  §  136.  Place 
of  Trial.  §  137.  Indictment.  §  138.  Jury  Trial.  §  139. 
Speedy  and  Public  Trail.  §  140.  Self-Incrimination. 
§  141.  Unreasonable  Searches  and  Seizures.  §  142.  Double 
Jeopardy.  §  143.  Counsel  and  Compulsory  Process  to 
Obtain  Witnesses.  §  144.  Confrontation  with  Witnesses. 
§  145.  Excessive  Bail  and  Fines,  and  Cruel  and  Unusual 
Punishments. 

CHAPTER  XVI 
JURY  TRIAL  IN  CIVIL  SUITS  ....     404 

§  146.  The  Right  to  a  Jury  Trial.  §  147.  Reexamination  of 
Facts  Found  by  a  Jury. 

CHAPTER  XVII 

N-' 
DUE  PROCESS  OF  LAW  AND  THE  FIFTH  AMENDMENT: 

EMINENT  DOMAIN  ......     406 

§  148.  Meaning  of  Due  Process  in  the  Fifth  Amendment.  §  149. 
Meaning  of  "Person,"  "Life,"  "Liberty,"  and  "Property." 


xiv  CONTENTS 

PAGE 

§  150.  Due  Process  in  Judicial  Proceedings.  §  151.  Due 
Process  and  Interstate  and  Foreign  Commerce.  §  152. 
Due  process  and  the  Taxing  Power.  §  153.  Due  Process 
and  the  Impairment  of  Contracts.  §  154.  Due  Process  and 
the  War  Power.  §  155.  Due  Process  and  the  Government 
of  the  Territories  and  the  District  of  Columbia.  §  156. 
Due  Process  and  Administrative  Action.  §  157.  Does 
Due  Process  Include  Equal  Protection?  §  158.  The 
Power  of  Eminent  Domain. 

CHAPTER   XVIII 

THE  LATER  AMENDMENTS  AND  THE  FEDERAL 

GOVERNMENT   .    .      _  .    .    .    422 

§  159.  The  Thirteenth  Amendment.  §  160.  The  Fourteenth 
Amendment.  §  161.  The  Fifteenth  Amendment.  §  162. 
Sixteenth  Amendment.  §  163.  Seventeenth  Amendment. 
§  164.  Eighteenth  Amendment.  §  165.  The  Nineteenth 
Amendment. 


PART  III 

THE  STATES 

CHAPTER  XIX 

THE  STATES  UNDER  THE  CONSTITUTION          .         .     435 

§  1 66.  The  Powers  of  the  States  Before  the  Tenth  Amendment. 
§  167.  The  Tenth  Amendment.  §  168.  State  Action  Ex- 
pressly Limited  by  Federal  Constitution  and  Statutes. 
§  169.  The  Rights  of  New  States.  §  170.  The  Scope  of  the 
Discussion  with  Regard  to  the  States. 

CHAPTER  XX 
POLITICAL  LIMITATIONS 440 

§  171.  Treaties  and  Compacts.  §  172.  Letters  of  Marque  and 
Reprisal.  .  §  173.  Coining  of  Money  and  Emitting  Bills  of 
Credit.  §  174.  Titles  of  Nobility  Not  to  be  Granted. 
§  175.  Duties  on  Exports,  Imports,  and  Tonnage.  §  176. 
States  Not  to  Keep  Troops  or  Engage  in  War.  §  177. 
Republican  Form  of  Government. 


CONTENTS  xv 

CHAPTER  XXI 

PAGE 

BILLS  OF  ATTAINDER  AND  Ex  POST  FACTO  LEGIS- 
LATION ........     446 

§  178.  Bills  of  Attainder.     §  179.  Ex  Post  Facto  Laws.     §  180. 

What  Are  Ex  Post  Facto  Laws.     §  Ex  PostFacto  Laws  1 8 1 . 

Which  Are  Not  Penal  in  Form.     §  182.  Judicial  Decisions 
and  the  Ex  Post  Facto  Rule. 

CHAPTER  XXII 
PROTECTION  OF  CONTRACTS 451 

§  183.  The  Contract  Clause  and  Its  Original  Purpose.  §  184. 
Liberal  Construction  by  the  Supreme  Court.  §  185.  When 
the  Obligation  of  a  Contracl  is  Impaired.  §  186.  Contracts 
to  which  a  State  is  a  Party.  §  187.  Dartmouth  College 
Case:  Franchises  as  Contracts.  §  188.  Grants  Which  Are 
Not  Contracts.  §  189.  Power  of  State  to  Exclude  Itself  by 
Contract  from  Exercise  of  Government  Powers.  §  190. 
Tendency  to  Limit  this  Power.  §  191.  Contract  Rights 
Subject  to  Eminent  Domain.  §  192.  Strict  Construction 
of  Contracts  in  Favor  of  the  Public.  §  193.  Municipalities 
Have  No  Inherent  Power  to  Limit  State  Action  by  Contract. 
§  194.  Certain  Police  Powers  Cannot  be  Contracted  Away. 
§  195.  The  Same  Principles  Should  Apply  to  Contracts  as  to 
Rates  and  Taxes.  §  196.  Broader  Legislative  Power  In- 
dicated by  Recent  Cases  under  the  Contract  Clause.  §  197. 
Contracts  Between  Individuals  are  Made  Subject  to  the 
Police  Power.  §  198.  Reservation  of  Right  to  Alter 
Charter  Contracts. 

CHAPTER  XXIII 

FULL  FAITH  AND  CREDIT 475 

§  199.  What  is  Meant  by  the  Requirement  of  Full  Faith  and 
Credit.  §  200.  Full  Faith  and  Credit  as  Applied  to  Judg- 
ments. §201.  Judgments  in  Rem.  §202.  Judgments  in 
Personam.  §  203.  Judgments  in  Divorce  Actions. 

CHAPTER  XXIV 

INTERSTATE  PRIVILEGES  AND  IMMUNITIES       .         .     482 

§  204.  Citizens  Are  Entitled  to  Equal  Privileges  and  Immunities 
in  Each  State.  §  205.  What  Privileges  and  Immunities  are 


xvi  CONTENTS 

PAGE 

Protected.  §  206.  Exclusion  of  Foreign  Corporations. 
§  207.  Private  Rights  Only  Are  Protected  by  the  Privileges 
and  Immunities  Clause. 

* 

CHAPTER  XXV 

INTERSTATE  RENDITION  OF  FUGITIVES    .         .         .     487 

§  208.  Constitutional  and  Statutory  Provisions.  §  209.  This 
Duty  Not  Enforceable  by  Mandamus.  §210.  Supple- 
mentary Stale  Legislation.  §211.  Judicial  Review  of  Arrest 
and  Surrender  of  Fugitive.  §212.  Kidnapping  of  Fugitives. 
§213.  A  Person  Extradited  for  One  Crime  May  Be  Tried 
for  Others.  §  214.  Return  of  Persons  Held  to  Service. 

CHAPTER  XXVI 

THE  THIRTEENTH  AMENDMENT      ....     494 

§  215.  Text  of  the  Amendment.  §  216.  Slavery  Recognized  by 
the  Constitution.  §217.  The  Ordinance  for  the  Govern- 
ment of  the  Northwest  Territory.  §218.  Admission  of 
Free  and  Slave  States.  §  219.  Emancipation  of  the  Slaves 
and  Adoption  of  the  Thirteenth  Amendment.  §  220. 
Purpose  of  the  Thirteenth  Amendment.  §221.  Peonage  and 
Other  Involuntary  Sefvitude.  §  222.  Services  Which  May 
Be  Constitutionally  Enforced. 

CHAPTER  XXVII 
THE  PROVISIONS  OF  THE  FOURTEENTH  AMENDMENT    502 

§  223.  Provisions  with  Regard  to  Citizenship.  §  224.  The  Due 
Process  and  Equal  Protection  Clauses.  §  225.  These  Pro- 
hibitions Are  Directed  Against  State  Action.  §  226.  Ap- 
portionment of  Representatives.  §  227.  Political  Disa- 
bilities. §  228.  Financial  Obligations  Arising  Out  of  the 
Civil  War.  §  229.  Enforcement  of  the  Amendment  by 
Congress. 

CHAPTER  XXVIII 

MEANING  OF  THE  DUE  PROCESS  CLAUSE        .         .     506 

§230.  Due  Process  in  English  Law.  §231.  Legislation  Does 
Not  Necessarily  Constitute  Due  Process.  §  232.  Due 
Process  Need  Not  Conform  to  Past  Usage.  §  233.  Essen- 
tial Significance  of  Due  Process.  §  234.  Meaning  of  "Life," 


CONTENTS  xvii 

PAGE 

"Liberty,"  and  "Property."     §  235.  Notice  and  Hearing  as 
Elements  of  Due  Process.     §  236.  Persons  Protected. 

CHAPTER   XXIX 
DUE  PROCESS  IN  JUDICIAL  PROCEEDINGS        .         .516 

§  237.  In  Actions  in  Personam  There  Must  Be  Jurisdiction  of  the 
Subject-Matter  and  of  the  Defendant.  §  238.  Jurisdic- 
tion of  Non-residents.  §  239.  Requirement  that  Foreign 
Corporations  Appoint  Agents  to  Receive  Service.  §  240.  Re- 
quirement that  Non-resident  Natural  Persons  Appoint 
Agents  to  Receive  Service.  §  241.  Service  upon  a  Resident 
Who  Is  Within  the  State:  State  Decisions.  §  242.  Service 
upon  Resident  Who  Is  Within  the  State:  United  States  Su- 
preme Court.  §  243.  Service  upon  Resident  Temporarily 
Out  of  State.  §  244.  Service  upon  Domestic  Corporations. 
§  245.  Service  Required  in  Actions  in  Rem.  §  246.  Service 
Required  in  Divorce  Proceedings.  §  247.  Due  Process  in 
Criminal  Trials. 

CHAPTER   XXX 

DUE  PROCESS  IN  TAXATION 533 

§  248.  Taxation  Properly  Levied  for  a  Proper  Purpose  Consti- 
tutes Due  Process.  §  249.  What  Are  and  What  Are  Not 
Proper  Purposes  for  Taxation.  §  250.  Exemption  from 
Taxation.  §  251.  Right  of  State  to  Tax  Land  and  Chattels. 
§252.  Taxation  of  Franchises  and  the  "Unit  Rule"  as  to 
Intangible  Property.  §  253.  State  Taxes  Interfering  with 
the  National  Goverment.  §  254.  Excises  on  Foreign  Cor- 
porations. §  255.  State  Taxation  of  Choses  in  Action. 
§  256.  State  Income  Taxes.  §  257.  State  Inheritance 
Taxes  on  Realty  and  Chattels.  §  258.  State  Inheritance 
Taxes  on  Intangible  Property.  §  259.  Notice  and  Hearing 
in  Taxation. 

CHAPTER  XXXI 

DUE  PROCESS  IN  EMINENT  DOMAIN       .         .         .     549 

§  260.  When  Property  is  Taken  by  Eminent  Domain  for  a  Public 
Use  There  is  Due  Process.  §261.  Power  of  Eminent  Do- 
main May  Not  Be  Contracted  Away.  §  262.  What  Is  a 
Public  Use  in  Eminent  Domain.  §  263.  What  Is  a  Taking 
in  Eminent  Domain.  §  264.  Measure  of  Compensation  in 


xviii  CONTENTS 

PAGE 

in  Eminent  Domain.     §  265.  Notice  and  Hearing  in  Emi- 
nent Domain. 

CHAPTER  XXXII 

DUE  PROCESS  AND  THE  POLICE  POWER          .         .     559 

§  266.  The  Relation  of  Police  Power  to  Due  Process.  §  267. 
Police.  Power  and  Eminent  Domain  Distinguished.  §  268. 
Extent  of  Interference  with  Property  Rights  Under  the 
Police  Power.  §  269.  Police  Power  of  the  States  and  Inter- 
state Commerce.  §  270.  Police  Power  to  Protect  Health, 
Safety,  Good  Order,  and  Morals.  §271.  Police  Power  May 
Not  Be  Exercised  Purely  for  Esthetic  Purposes.  §272. 
Regulation  of  Rates  and  Service.  §  273.  Protecting  the 
Public  Against  Fraud,  Oppression,  Loss,  and  Waste.  §  274. 
Regulation  of  Employment. 

CHAPTER  XXXIII 

THE    EQUAL   PROTECTION    CLAUSE  OF  THE  FOUR- 
TEENTH AMENDMENT 586 

§  275.  The  Purpose  of  Its  Adoption.  §  276.  The  Persons  Who 
are  Protected  by  the  Equal  Protection  Clause.  §  277.  It  is 
the  State  which  Must  Not  Deny  Equal  Protection.  §  278. 
Rights  which  are  Protected.  §  279.  Reasonable  Differences 
Not  Forbidden,  §  280.  Special  Assessments  and  Other 
Geographical  Classifications.  §281.  Classification  for 
General  Taxation.  §  282.  Classification  under  the  Police 
Power. 

CHAPTER   XXXIV 
THE  SUFFRAGE  AND  PROHIBITION  AMENDMENTS      .     612 

§  283.  The  Fifteenth  Amendment.  §  284.  The  Nineteenth 
Amendment.  §  285.  The  Eighteenth  Amendment. 

APPENDIX 617 

TABLE  OF  CASES 642 

INDEX 671 


The  Law 

of  the 
American  Constitution 


PART  I 

MAKING  AND  AMENDING  THE  CONSTITUTION 


CHAPTER  I 

ORIGIN  OF  THE   CONSTITUTION 

§i.  The  Constitution  and  its  Framers.  Gladstone's 
contrast  of  the  British  Constitution  as  "the  most  subtle 
organism  which  has  proceeded  from  progressive  history" 
with  the  Constitution  of  the  United  States  as  "the  most 
wonderful  work  ever  struck  off  at  a  given  time  by  the  brain 
and  purpose  of  man,"  is  not  altogether  satisfactory.  It 
suggests  that  the  American  Constitution  is  a  manufacture 
rather  than  a  growth. 

In  fact,  each  of  these  political  organisms  is  the  product 
of  progressive  history.  It  is  true  that  the  Convention  of 
1787  sent  out  a  single  document  for  adoption,  while  the 
written  parts  of  Britain's  fundamental  law  are  embodied 
in  several  documents,  which  took  form  at  different  periods. 
It  would  be  erroneous,  however,  to  describe  the  frame  of 
government,  signed  by  Washington  and  his  fellow-delegates 
at  Philadelphia,  as  their  invention.  It  is  not  so  much  a 
creation  of  political  theorists  as  a  codification  by  practical 
statesmen  of  doctrines  which  experience  showed  had  worked 
well,  or  were  needed  for  the  well- working  of  government  in 
their  country. 

Moreover,  it  did  not  fully  satisfy  any  of  its  framers,  and 
the  discussion  connected  with  its  adoption  disclosed  a 
strong  popular  feeling  that  it  ought  to  be  supplemented  by 
a  formal  bill  of  rights.  Accordingly,  various  amendments 
were  prepared  and  ten  of  these  were  ratified  within  two  years 
after  the  original  Constitution  went  into  effect.  All  of 
these  were  suggested  by  political  experience  during  the 
revolutionary  and  colonial  periods,  while  some  trace  their 
origin  back  through  English  history  to  Magna  Charta. 

3 


4  THE  AMERICAN  CONSTITUTION         §  i 

It  is  clear  that  the  Convention  which  drafted  our  Con- 
stitution did  not  originate  with  political  agitators  whose 
heads  were  filled  with  new  schemes  of  government.  It  re- 
sulted from  the  popular  conviction  that  the  existing  federal 
system  was  a  failure,  a  conviction  which  was  voiced  by 
Patrick  Henry1  and  other  champions  of  state  sovereignty, 
as  well  as  by  those  who  "thought  continentally."  How 
slowly  this  conviction  matured  is  shown  in  the  stages  by 
which  public  opinion  advanced  towards  the  goal  of  the 
Convention. 

§2.  The  Background  of  the  Constitutional  Convention. 
As  early  as  1643  the  colonies  of  Massachusetts,  New  Ply- 
mouth, Connecticut,  and  New  Haven  drew  up  "Articles  of 
Confederation  of  the  United  Colonies  of  New  England," 
driven  thereto  by  the  dangers  which  threatened  them  from 
the  hostile  Indians,  and  from  the  Dutch  at  New  Amsterdam 
and  Fort  Orange  (New  York  and  Albany).  The  purpose  of 
this  confederation  was  principally  that  of  mutual  defense, 
and  matters  of  internal  affairs  were  expressly  left  to  the 
several  colonies,  but  nevertheless  the  commissioners  were 
directed  to 

"endeavoure  to  frame  and  establish  agreements  and 
orders  in  general  cases  of  a  civil  nature  wherein  all  the 
plantacons  are  interested  for  preserving  peace  among 
themselves,  and  preventing  as  much  as  may  bee  all 
occations  of  warr  or  difference  with  others." 

Provision  was  also  made  for  the  return  by  each  colony  to 
the  authorities  of  the  others  of  runaway  servants  and  es- 
caped criminals.  Control  of  the  affairs  of  the  confedera- 
tion was  put  into  the  hands  of  eight  commissioners,  two 
from  each  colony,  and  in  most  matters  action  could  be  taken 
by  the  concurrence  of  six  commissioners. 2  The  confedera- 
tion functioned  actively  until  the  conquest  of  New  Nether- 

1  "He  saw  ruin  inevitable  unless  something  was  done  to  give  Congress 
a  compulsory  process  on  delinquent  States."    Bancroft's  History  of  the 
Constitution,  162. 

2  For  the  text  of  the  articles  see  Taylor,  The  Origin  and  Growth  of  the 
American  Constitution,  477. 


§  2        ORIGIN  OF  THE  CONSTITUTION  5 

land  in  1664,  and  there  were  occasional  meetings  of  the 
commissioners  for  twenty  years  more,  when  the  organiza- 
tion finally  fell  apart. 

In  1684  representatives  of  Massachusetts,  New  York, 
Maryland,  and  Virginia  met  at  Albany  to  provide  for 
measures  of  defense  against  the  Five  Nations,  and  ten  years 
later  representatives  from  Massachusetts,  New  York, 
Connecticut,  and  New  Jersey  met  at  the  same  place  to  frame 
a  treaty  with  the  same  Indian  tribes.  While  in  1721  there 
was  a  gathering  of  New  England  governors  at  New  London 
to  consider  matters  involved  in  a  proposed  invasion  of 
Canada. x 

In  1697  William  Penn  proposed  a  plan  of  union  of  all  the 
colonies2  for  the  purposes  of  defense,  regulation  of  commerce, 
and  for  concerted  action  for  the  prevention  of  the  escape  of 
debtors  and  criminals.  There  was  to  be  a  congress  com- 
posed of  two  representatives  from  each  colony,  which  was 
to  be  presided  over  by  a  commissioner  appointed  by  the 
king.  Nothing  came  of  this  proposal,  nor  of  a  somewhat 
similar  one  made  in  1731. 

An  important  gathering  of  commissioners  from  Massachu- 
setts, New  York,  New  Hampshire,  Connecticut,  Rhode 
Island,  Maryland,  and  Pennsylvania  was  held  at  Albany  in 
1754,  as  a  result  of  the  impending  danger  to  the  American 
colonies  from  the  French  in  the  north  and  west.  To  these 
commissioners  Benjamin  Franklin  proposed  a  plan  of  union, 
which  was  approved  by  all  of  the  commissioners  except 
those  from  Connecticut,  and  was  sent  to  England  in  the 
hope  that  it  would  be  put  into  effect  by  Act  of  Parliament, 
but  it  was  there  thought  to  give  too  much  power  to  the 
colonial  representatives,  and  no  action  on  it  was  taken.  It 
proposed  a  president-general  to  be  appointed  and  supported 
by  the  Crown,  and  a  council  to  be  chosen  by  the  colonial 
legislatures,  the  members  to  be  apportioned  among  the 
colonies  in  proportion  to  taxes  paid,  but  no  colony  to  have 
less  than  two  or  more  than  seven.  The  assent  of  the  presi- 

1  Taylor,  The  Origin  and  Growth  of  the  American  Constitution,  120. 

2  Ibid.,  483,  for  the  text  of  this  plan. 


6  THE  AMERICAN  CONSTITUTION         §  2 

dent-general  was  to  be  necessary  to  every  action  by  the 
council,  and  all  laws  were  to  be  transmitted  to  the  king  in 
council  for  approval,  but  were  to  remain  in  force  if  not  dis- 
approved within  three  years.  It  was  declared  that  the 
president-general  and  council  should  have  power  to  make 
treaties  with  the  Indians,  to  regulate  Indian  trade  and  pur- 
chases of  land  from  the  Indians,  to  provide  for  new  settle- 
ments and  to  govern  them  until  Parliament  should  act,  to 
raise  and  equip  soldiers  and  vessels,  and  for  these  purposes 
they  were  to  have  power  to  make  laws  and  levy  taxes.  All 
military  officers  were  to  be  appointed  by  the  president- 
general  with  the  approval  of  the  council,  and  all  civil  officers 
were  to  be  appointed  by  the  council  with  the  approval  of 
the  president-general.1  In  this  scheme  we  see  evidence 
that  the  colonists  were  beginning  to  seriously  consider  the 
advantages  of  union,  and  to  show  a  strong  desire  to  manage 
their  own  affairs. 

The  next  occasion  for  a  gathering  of  representatives  of  the 
American  colonies  was  the  passage  of  the  Stamp  Act,  and 
of  other  acts  extending  the  jurisdiction  of  admiralty  and 
restricting  colonial  commerce.  This  gathering  was  held  at 
New  York,  and  met  at  the  suggestion  of  Massachusetts  in 
October,  1765.  There  were  present  representatives  of  all 
of  the  colonies  except  New  Hampshire,  Virginia,  North 
Carolina,  and  Georgia.  This  "Stamp  Act  Congress"  drew 
up  a  declaration  of  rights,  and  petitions  to  the  king,  the 
House  of  Lords,  and  the  House  of  Commons.  The  declara- 
tion of  rights  set  forth  that  the  colonists  were  entitled  to  all 
of  the  rights  and  liberties  of  Englishmen  in  the  mother 
country,  that  one  of  these  rights  was  that  no  taxes  should  be 
imposed  without  the  consent  of  the  taxed  given  personally 
or  through  representatives,  that  because  of  their  geographi- 
cal position  it  was  impossible  for  the  American  colonists  to 
be  represented  in  Parliament,  that  their  only  representation 
was  in  the  colonial  legislatures  which  alone  had,  and  could 
constitutionally  levy  taxes  in  the  colonies,  that  the  colonists 

1  Taylor,  The  Origin  and  Growth  of  the  American  Constitution,  121  to 
123,  485  to  494. 


§  2         ORIGIN  OF  THE  CONSTITUTION  7 

had  an  inherent  right  to  trial  by  jury,  and  that  the  restric- 
tions put  upon  their  commerce  was  an  unwarranted  burden. 
The  result  of  the  colonists'  protest  was  the  repeal  of  the 
Stamp  Act,  but  concurrently  with  this  repeal  Parliament 
declared  its  absolute  right  to  pass  any  and  all  laws  for  the 
government  of  the  colonies.  x 

In  conformity  with  this  declaration  of  Parliament  that 
body  in  1767  passed  an  act  levying  a  tax  upon  the  importa- 
tion of  certain  goods  into  the  colonies  including  tea.  Great 
opposition  to  these  taxes  developed  at  once,  culminating 
in  the  "Boston  Tea  Party."  To  punish  the  Massachusetts 
colonists  for  this  defiance  of  law  Parliament  passed  acts 
closing  the  port  of  Boston  and  transferring  its  trade  to  Salem, 
suspending  the  colonial  charter,  providing  for  the  quarter- 
ing of  troops  in  the  colony,  and  reviving  an  ancient  statute 
for  the  trial  in  England  of  treason  committed  abroad. 
These  acts  aroused  great  indignation  throughout  the  Ameri- 
can colonies,  and  at  the  suggestion  of  Virginia,  Massachu- 
setts sent  out  a  call  for  a  meeting  of  delegates  from  all  of 
the  colonies  at  Philadelphia.  Representatives  of  all  of  the 
colonies  except  Georgia  met  in  that  city  in  September, 
1774,  in  what  is  known  as  the  First  Continental  Congress. 
This  Congress  also  drew  up  a  bill  of  rights,  embodying  the 
substance  of  that  of  the  Stamp  Act  Congress,  and  declaring 
that  the  colonists  were  entitled  to  life,  liberty,  and  property, 
to  all  the  rights  and  immunities  of  subjects  born  within  the 
realm  of  England,  to  the  common  law  of  England,  to  the 
benefit  of  statutes  in  force  when  they  emigrated  and  which 
they  found  applicable  to  their  new  conditions,  and  to  the 
privileges  and  immunities  provided  for  in  their  charters 
and  laws;  "that  the  foundation  of  English  liberty,  and  of 
all  free  government,  is  a  right  in  the  people  to  participate 
in  their  legislative  council";  and  that  the  keeping  of  a 
standing  army  in  the  colonies  without  their  consent  in  time 
of  peace  was  unlawful.  The  document  then  went  on  to 

1  For  the  texts  of  the  colonists,  declaration  of  rights  and  of  Parlia- 
ment's reply,  see  Taylor,  The  Origin  and  Growth  of  the  American  Con- 
stitution, 495  to  497. 


8  THE  AMERICAN  CONSTITUTION        §  2 

condemn  the  statutes  which  were  the  cause  of  the  bad 
feeling  in  the  colonies,  and  declaring  that  ' '  Americans  can- 
not submit"  to  them,  state  the  intention  of  the  colonists 
"to  enter  into  a  non-importation,  non-consumption,  and 
non-exportation  agreement  and  association."1  Congress 
then  provided  for  another  meeting  in  the  following  May. 
The  Second  Continental  Congress  met  in  Philadelphia 
on  May  10,  1775,  with  representatives  present  from  all  of 
the  colonies.  The  battle  of  Lexington  had  already  been 
fought  and  the  battle  of  Bunker  Hill  was  fought  the  next 
month.  In  fact  the  Revolution  had  started.  It  was  appar- 
ent to  all  that  concerted  action  was  necessary,  and  it  was 
intended  that  Congress  should  act  in  this  crisis  for  all  of  the 
colonies.  Most  of  the  colonies  expressly  or  by  clear  implica- 
tion gave  their  representatives  authority  to  bind  them  by 
any  action  they  might  take  in  concert  with  the  representa- 
tives of  the  other  colonies.  Only  in  the  cases  of  New  Jersey 
and  Delaware  was  there  any  intention  apparent  to  require 
confirmation  of  the  acts  of  the  representatives  in  Congress. 2 
The  Second  Continental  Congress  was  clearly  a  revolu- 
tionary body  exercising  such  powers  as  were  necessary  to 
meet  the  exigencies  of  the  situation,  and  the  whole  War  of 
Independence  was  conducted  by  it.  Though  it  did  not 
assume  the  power  to  legislate  for  the  country  at  large,  but 
instead  recommended  to  the  various  States  the  legislation 
which  it  thought  necessary,  it  nevertheless  chose  Washing- 
ton commander-in-chief  and  authorized  him  to  raise  an 
army,  made  rules  and  orders  for  the  navy,  entered  into 
treaties,  borrowed  money,  issued  paper  currency,  and  most 
important  of  all  adopted  the  Declaration  of  Independence, 
and  drafted  the  Articles  of  Confederation.  It  seems  that 
Franklin  submitted  Articles  of  Confederation  to  the  Con- 
tinental Congress  in  July,  1775,  but  no  action  was  taken  at 
that  time.  His  sketch  became  the  basis,  however,  of  the 

1  For  the  text  of  this  declaration  of  rights  see  Taylor,  The  Origin  and 
Growth  of  the  American  Constitution,  498  to  501. 

3  John  Randolph  Tucker,  Constitution  of  the  United  States,  vol,  i, 
pp.  215  to  217. 


§  2        ORIGIN  OF  THE  CONSTITUTION  9 

scheme  reported  on  July  12,  1776,  by  the  committee  ap- 
pointed for  that  purpose.  This  was  debated  and  amended 
until  November  17,  1777,  when  it  was  agreed  to  by  Con- 
gress and  submitted  to  the  various  States.  It  was  not 
agreed  to,  however,  by  the  last  State,  Maryland,  until  1781. 

Under  the  Articles  of  Confederation  Congress  had  power 
over  military  and  international  affairs,  to  coin  money,  fix 
standards  of  weights  and  measures,  control  Indian  affairs, 
conduct  and  regulate  post-offices,  and  to  settle  disputes, 
between  the  States.  After  the  Articles  of  Confederation 
had  been  adopted,  but  as  a  result  of  an  understanding 
arrived  at  as  a  condition  to  Maryland's  adherence  to  those 
Articles,  the  vast  northwest  territory  was  transferred  to  the 
national  government,  and  without  express  authorization 
in  the  Articles  themselves  Congress  proceeded  to  enact  the 
famous  ordinance  for  its  government.  Congress,  on  the 
other  hand,  had  no  authority  to  levy  taxes,  but  had  to  leave 
to  each  State  to  contribute  the  share  of  national  expenses 
assigned  to  it,  nor  had  it  any  power  to  act  directly  on  in- 
dividuals in  any  matter,  or  to  regulate  foreign  or  interstate 
commerce. 

Legislation  with  regard  to  commerce  was  left  to  the 
States,  subject  to  a  few  limitations.  Provision  was  made 
that  ' '  the  people  of  each  State  shall  have  free  ingress  and 
egress  to  and  from  any  other  State,  and  shall  enjoy  therein 
all  the  privileges  of  trade  and  commerce,  subject  to  the  same 
duties,  importations,  and  restrictions  as  the  inhabitants 
thereof  respectively."  It  was  further  declared  that  "no 
State  shall  lay  any  imposts  or  duties  which  may  interfere 
with  any  stipulations  in  treaties,  entered  into  by  the  United 
States  in  Congress  assembled." 

As  the  result  of  disputes  and  conflicts  of  jurisdiction  it 
very  soon  became  important  for  States  having  common 
interests  in  the  navigation  of  rivers,  to  reach  definite  agree- 
ments about  them.  Accordingly,  Virginia  and  Maryland 
appointed  commissioners  to  consider  this  topic  with  regard 
to  the  Potomac  River.  Upon  the  invitation  of  Washington 
they  met  at  Mt.  Vernon,  where  they  had  the  benefit  of  his 


io         THE  AMERICAN  CONSTITUTION         §2 

counsel,  and  agreed  not  only  upon  a  report  in  favor  of  uni- 
form regulations  on  various  subjects  connected  with  their 
interests  in  interstate  waters,1  but  in  favor  of  a  convention 
of  all  the  States,  ' '  to  take  into  consideration  the  trade  and 
commerce"  of  the  Confederation. 

Such  a  convention  was  called  and  representatives  from 
five  States :  Virginia,  Pennsylvania,  Delaware,  New  Jersey, 
and  New  York,  met  at  Annapolis  in  September,  1786.  Its 
purpose,  as  described  in  the  Virginia  resolution  naming  the 
delegates  from  that  State,  was 

"to  examine  the  relative  situations  and  trade  of  the 
United  States,  to  consider  how  far  a  uniform  system  in 
their  commercial  regulations  may  be  necessary  to  their 
permanent  harmony;  and  to  report  to  the  several  States 
such  an  act  relative  to  this  great  object,  as,  when  unani- 
mously ratified  by  them,  will  enable  the  United  States 
in  Congress  effectually  to  provide  for  the  same." 

Because  of  the  small  attendance,  the  Annapolis  conven- 
tion did  not  deem  ' '  it  advisable  to  proceed  on  the  business 
of  their  mission."  They  did  compare  views  and  they 
reached  the  definite  conclusion  that  another  attempt  should 
be  made  to  convene  representatives  from  all  of  the  States. 
This  body,  in  their  opinion,  should  undertake  a  broader  task 
than  had  been  assigned  to  them.  This  should  include ' '  other 
objects  than  those  of  commerce."  It  should  extend  to  a 
careful  examination  of  the  defects  in  the  existing  system  of 
government,  and  to  "digesting  a  plan  for  supplying  such 
defects  as  may  be  discovered. ' '  Accordingly,  the  Annapolis 
delegates  suggested  that  a  convention  of  representatives 
from  all  the  States  meet  at  Philadelphia,  on  the  second 
Monday  in  May,  1787, 

1  This  agreement  was  ratified  by  the  two  States  and  is  still  in  force 
as  a  compact  between  them,  except  as  to  those  provisions  which  conflict 
with  the  right  of  the  federal  government  under  the  constitution  to 
regulate  commerce.  Wharton  v.  Wise  (1894)  J53  U.  S.  155.  The  terms 
of  the  compact  are  set  forth  in  the  opinion  of  Justice  Field  at  pp.  163  to 
165. 


§3        ORIGIN  OF  THE  CONSTITUTION          11 

"to  take  into  consideration  the  situation  of  the  United 
States;  to  devise  such  further  provisions  as  shall  appear 
necessary  to  render  the  constitution  of  the  federal  gov- 
ernment adequate  to  the  exigencies  of  the  Union,  and  to 
report  such  an  act  for  that  purpose  to  the  United  States 
in  Congress  assembled,  as,  when  agreed  to  by  them,  and 
afterwards  confirmed  by  the  legislatures  of  every  State, 
will  effectually  provide  for  the  same." 

Copies  of  this  report  were  sent  to  the  "United  States  in 
Congress, "  to  the  legislatures  of  the  five  States  represented 
and  to  the  executives  of  the  other  States. 

In  reviewing  this  period,  Madison  stresses  the  "ripening 
of  the  public  mind  for  a  salutary  reform  of  the  political 
system."  In  1784,  it  was  occupied  only  with  thoughts  of 
navigation  between  adjacent  States.  In  1785  its  horizon 
had  been  widened  to  the  regulation  of  commerce  generally. 
By  1786,  it  had  awakened  to  the  necessity  of  radical  changes 
in  the  government  which  was  operating  under  the  Articles 
of  Confederation,  in  order  that  it  might  be  adequate  to  the 
exigencies  of  the  times  and  to  the  preservation  of  the  Union. 

§3.  The  Constitutional  Convention.  Congress  only  re- 
sponded to  popular  sentiment  in  passing  a  resolution 
favoring  the  suggested  convention  to  revise  the  existing 
system  of  government.  Every  State  except  Rhode  Island 
sent  delegates  who  took  part  in  the  proceedings.  Various 
explanations  of  Rhode  Island's  abstention  have  been  given. 
Madison  declared  that  she  was 

"swayed  by  an  obdurate  adherence  to  an  advantage 
which  her  position  gave  her,  of  taxing  her  neighbors 
through  their  consumption  of  imported  supplies,  an 
advantage  which  it  was  foreseen  would  be  taken  from  her 
by  a  revisal  of  the  Articles  of  Confederation."1 

On  the  other  hand  her  attitude  has  been  ascribed  to  the 
influence  of  her  agrarian  and  debtor  classes. 2 

1  Madison  Papers,  p.  709. 

2  Beard,  Economic  Interpretation  of  the  Constitution,  237. 


12         THE  AMERICAN  CONSTITUTION         §  3 

Although  there  was  a  settled  conviction  that  the  existing 
system  was  seriously  defective,  the  delegates  to  the  Phila- 
delphia Convention  did  not  receive  very  definite  instruc- 
tions for  the  task  they  were  to  perform.  x  Virginia  had  taken 
the  lead  in  this  movement,  and  her  representatives  prepared 
themselves  to  present  a  plan2  for  consideration  at  the  open- 
ing of  the  Convention  on  May  25,  1787.  Other  plans  were 
presented  by  the  delegates  from  New  Jersey,3  by  Mr. 
Pinckney  from  South  Carolina,4  and  by  Mr.  Hamilton  from 
New  York. s 

Discussion  was  directed  chiefly  to  the  Virginia  and  New 
Jersey  plans,  and  when  the  Convention,  on  June  iQth, 
expressed  its  preference  for  the  former  by  the  decisive  vote 
of  seven  States  to  three,  with  one  State  divided, 6  it  became 
apparent  that  the  delegates  were  committed  to  the  policy 
of  drafting  a  new  constitution  as  against  attempts  to  revise 
the  old  Articles  of  Confederation. 

This  decision  was  not  made  public,  however,  until  the 
work  of  the  Convention  was  finished  and  the  new  frame  of 
government  was  printed  in  the  Pennsylvania  Packet  and 
Daily  Advertiser,  on  September  18,  1787. 

Not  only  was  the  new  Constitution  to  supersede  the 
Articles  of  Confederation,  instead  of  amending  them,  in 
accordance  with  their  provision  for  amendments,  but  it  was 
to  take  effect  when  ratified  by  nine  of  the  thirteen  States. 
The  Articles  of  Confederation  had  declared  that  they 

"shall  be  inviolably  observed  by  every  State  and  the 
Union  shall  be  perpetual;  nor  shall  any  alteration  at  any 
time  hereafter  be  made  in  any  of  them,  unless  such  altera- 

1  Delaware  seems  to  have  been  the  only  State  which  "tied  the  hands 
of  her  deputies  by  express  directions."  Letter  of  Geo.  Mason,  May  27, 
1787;  Madison's  and  Yates's  Notes  for  May  25,  1787. 

a  Taylor,  The  Origin  and  Growth  of  the  American  Constitution,  550. 

a  Ibid.,  580. 

*  Ibid.,  562;  Farrand,  The  Records  of  the  Federal  Convention,  vol.  iii, 
PP.  595  to  609. 

s  Taylor,  The  Origin  and  Growth  of  the  American  Constitution,  568. 

«  Mass.,  Conn.,  Pa.,  Va.,  N.  C.,  S.  C.,  and  Ga.  voted  aye;  N.  Y.,  N.  J., 
and  Del.  voted  no  and  Md.  was  divided. 


§  4        ORIGIN  OF  THE  CONSTITUTION          13 

tion  be  agreed  to  in  a  Congress  of  the  United  States,  and 
be  afterwards  confirmed  by  the  legislatures  of  every 
State." 

§4.  The  Adoption  of  the  Constitution.  The  opponents 
of  the  new  system  laid  great  stress  upon  what  they  styled 
usurpation  of  authority  by  the  Convention.  It  had  been 
convoked  to  amend  the  old  constitution  and  had  proceeded 
to  make  a  new  one.  Madison's  reply1  was:  (First)  The 
authority  of  the  Convention  was  not  limited  to  proposing 
amendments  if  it  discovered  that  these  would  not  "render 
the  Federal  Constitution  adequate  to  the  exigencies  of  gov- 
ernment and  the  preservation  of  the  Union."  (Second)  The 
powers  conferred  upon  the  Convention  were  "merely  ad- 
visory and  recommendatory."  That  body  was  not  to 
establish  a  form  of  government  but  to  draft  a  constitution 
for  submission  to  the  people.  The  delegates  had  planned 
and  proposed  a  document ' '  which  is  to  be  of  no  more  conse- 
quence than  the  paper  on  which  it  is  written,  unless  it  be 
stamped  with  the  approbation  of  those  to  whom  it  is  ad- 
dressed." (Third)  If  any  State  were  to  complain  that  the 
"federal  pact"  had  been  dissolved  without  its  consent,  it 
would  ' '  find  it  a  difficult  task  to  answer  the  multiplied  and 
important  infractions  with  which"  it  might  be  confronted. 
(Fourth)  The  methods  pursued  and  proposed  by  the  Con- 
vention were  consistent  with  the  practices  of  the  States  in 
framing  their  several  constitutions  and  in  organizing  the 
Union,  during  the  revolutionary  period.  Government  under 
the  Articles  of  Confederation  had  broken  down.  A  political 
situation  had  developed,  which  in  the  language  of  the 
Declaration  of  Independence  gave  the  people  the  right  to 
alter  or  abolish  their  existing  system  "and  to  institute  a  new 
government,  laying  its  powers  in  such  form  as  to  them  shall 
seem  most  likely  to  effect  their  safety  and  happiness." 

After  the  new  Constitution  had  been  "laid  before  the 
United  States  in  Congress  assembled,"  and  by  Congress 
had  been  * '  submitted  to  a  convention  of  delegates  chosen  in 

1  The  Federalist,  Nos.  40  to  43. 


14         THE  AMERICAN  CONSTITUTION         §  4 

each  State  by  the  people  thereof,"  except  Rhode  Island, 
which  refused  to  call  a  convention,  it  was  ratified  by  eleven 
States.  Delaware  was  the  first  state  to  ratify,  which  it 
did  by  the  unanimous  vote  of  its  convention  on  December 
7,  1 787.*  Pennsylvania  ratified  by  a  vote  of  46  to  23  on 
December  I2th, 2  and  New  Jersey  unanimously  on  the  i8th.3 
On  January  2d  of  the  next  year  the  Georgia  Convention 
ratified  unanimously, 4  and  seven  days  later  the  Connecticut 
Convention  voted  by  more  than  three  to  one  for  ratification. 5 
The  next  State  to  accept  the  Constitution  was  Massachu- 
setts, on  February  6th.  Ratification  was  only  obtained 
here  after  a  hard  fight,  and  by  the  narrow  margin  of  nine- 
teen votes  in  a  convention  having  a  membership  of  three 
hundred  and  fifty-five.  Many  objections  were  taken  to  the 
Constitution  as  drafted,  and  a  number  of  amendments 
were  strongly  urged,  but  its  supporters  were  able  to  prevent 
these  amendments  being  made  a  condition  of  acceptance. 
Instead  the  Constitution  was  unconditionally  ratified, 
together  with  a  recommendation  that  certain  amendments 
be  added  to  it  by  the  means  provided  in  the  instrument 
itself.6  On  April  28th  the  Maryland  Convention  ratified 
after  a  short  session  by  the  overwhelming  vote  of  63  to  1 1.7 
In  South  Carolina  the  fight  against  the  Constitution  was 
more  vigorous,  its  opponents  being  encouraged  by  the  in- 
fluential party  in  Virginia  which  was  opposed  to  ratification, 
but  here,  too,  the  Constitution  gained  a  decisive  victory 
on  May  23d,  when  the  vote  for  ratification  was  149  to  73. 8 
The  New  Hampshire  Convention,  having  waited  to  see  what 

1  Elliot's  Debates,  vol.  i,  p.  319,  vol.  v,  p.  569. 

3  Ibid.  For  the  debates  in  the  Pennsylvania  Convention  see  Elliot's 
Debates,  vol.  ii,  pp.  415  to  546. 

3  Ibid.,  vol.  i,  p.  320. 

< Ibid.,  vol.  i,  p.  323;  Stevens,  History  of  Georgia,  vol.  ii,  p.  387. 

s  Elliot's  Debates,  vol.  i,  p.  321.  Ihe  vote  was  128  to  40.  See  the 
partial  report  of  the  debate  in  the  convention  in  Elliot's  Debates,  vol.  ii, 
pp.  185  to  202. 

6  Elliot's  Debates,  vol.  ii,  pp.  i  to  183. 

t  Ibid.,  vol.  i,  p.  324,  vol.  ii,  pp.  547  to  556. 

8  Ibid.,  vol.  i,  p.  325,  vol.  iv,  pp.  253  to  342. 


§  4        ORIGIN  OF  THE  CONSTITUTION          15 

action  Massachusetts  would  take,  ratified  the  Constitution 
on  June  2ist  in  very  much  the  same  form  as  that  adopted 
by  Massachusetts.1 

New  Hampshire  was  the  ninth  State  to  ratify  the  Con- 
stitution, and  by  the  terms  of  that  instrument,  "The  ratifi- 
cation of  the  conventions  of  nine  States  shall  be  sufficient  for 
the  establishment  of  this  Constitution  between  the  States 
so  ratifying  the  same."2  It  is  clear,  however,  that  the 
Union  could  not  have  been  put  into  successful  operation  if 
Virginia  and  New  York  had  chosen  to  stay  outside,  and  to 
assume  the  position  of  independent  States.  The  Virginia 
Convention  met  on  June  2,  1788,  and  in  this  convention 
the  Constitution  was  most  brilliantly  debated.  It  had  as  its 
supporters  such  men  as  Madison,  Marshall,  and  Randolph, 
while  it  was  bitterly  assailed  by  Patrick  Henry  and  Mason. 
The  supporters  of  the  Constitution  finally  won  the  day  on 
June  25th,  by  the  narrow  margin  of  ten  votes.3  It  was 
only  with  the  greatest  difficulty  that  conditional  ratifica- 
tion was  avoided,  and  that  there  was  substituted  a  mere 
recommendation  of  amendments  which  it  was  desired  should 
be  added  to  the  fundamental  law.  When  the  vote  was 
taken  the  Virginia  Convention  was  ignorant  of  the  fact 
that  the  ninth  State,  New  Hampshire,  had  already  ratified. 
The  New  York  Convention  met  two  weeks  later  than  did 
the  one  which  gathered  in  Virginia.  It  was  presided  over 
by  Governor  Clinton,  who  was  strongly  opposed  to  the 
Constitution,  and  he  was  supported  by  Yates  and  Lansing, 
who  had  been  delegates  from  New  York  to  the  Convention 
which  framed  the  Constitution,  but  who  had  withdrawn 
from  that  gathering  and  had  refused  to  put  their  signatures 
to  the  document  which  it  produced.  The  most  brilliant 
work  in  support  of  the  Constitution  was  done  by  Alexander 
Hamilton,  who  with  Jay,  Livingston,  Morris,  and  others 

1  Elliot's  Debates,  vol.  i,  p.  325. 

*  Article  VII. 

3  The  full  text  of  the  debate  will  be  found  in  Elliot's  Debates,  vol.  iii. 
The  story  of  the  struggle  for  ratification  in  Virginia  is  most  interestingly 
told  in  Beveridge's  Life  of  John  Marshall,  vol.  i,  pp.  318  to  490. 


16         THE  AMERICAN  CONSTITUTION    §§  5,  6 

finally  carried  it  to  victory. x  As  had  been  the  case  in  Massa- 
chusetts and  Virginia,  so  in  New  York  it  was  only  with 
difficulty  that  the  Convention  was  prevented  from  making 
certain  amendments  conditions  of  ratification,  and  was 
prevailed  upon  to  accept  the  Constitution  unconditionally, 
while  recommending  amendments  for  future  incorporation. 

§5.  The  Constitution  Put  into  Operation.  When  the 
Constitution  had  been  ratified  by  eleven  States  Con- 
gress, which  was  still  functioning  though  inefficiently 
under  the  Articles  of  Confederation,  fixed  the  first  Wed- 
nesday of  January,  1789,  as  the  day  for  choosing  presi- 
dential electors,  the  first  Wednesday  in  February  for 
the  meeting  of  electors,  and  the  first  Wednesday  of  March 
for  the  opening  session  of  the  new  Congress.  Owing  to 
various  delays,  the  new  government  did  not  "commence 
proceedings  under  the  Constitution"  until  April  30,  1789. 
North  Carolina  did  not  ratify  the  Constitution  until  Novem- 
ber 21,  1789,  while  Rhode  Island  did  not  join  the  Union 
until  May  29,  1790. 

During  the  latter  part  of  1788  and  the  early  part  of  1789, 
there  was  no  federal  government  in  operation.  The  Con- 
tinental Congress  "dissolved  on  the  first  of  November,  1788, 
by  the  successive  disappearance  of  its  members.  It  existed 
potentially  until  the  second  of  March,  the  day  preceding 
that  on  which  the  members  of  the  new  Congress  were 
directed  to  assemble"2;  but  from  the  first  of  November 
until  the  following  thirtieth  of  April,  the  federal  government 
performed  only  the  functions  incident  to  a  winding  up  of  its 
affairs. 

§6.  The  Revolutionary  Character  of  the  Constitution 
Adopted.  The  procedure  followed  in  adopting  the  new 
Constitution  has  been  called  unconstitutional.  Undoubt- 
edly, the  mode  prescribed  by  the  Articles  of  Confederation 
had  not  been  followed,  and  the  method  pursued  can  be 
justified  only  on  the  ground  that  public  safety  superseded 

1  See  the  report  of  the  debate  and  of  the  vote  in  Elliot's  Debates,  vol. 
ii,  pp.  205  to  414. 

3  Owens  v.  Speed  (1820),  5  Wheaton  420,  Opinion  by  Marshall,  C.  J. 


§  6        ORIGIN  OF  THE  CONSTITUTION          17 

the  scruple  arising  from  the  lack  of  legal  power  in  the  Con- 
vention to  frame  a  new  Constitution.  Lansing,  who  with- 
drew from  the  Convention  as  a  delegate  from  New  York, 
when  it  was  decided  that  the  old  system  was  hopelessly 
defective,  intimated  that  he  would  have  dismissed  the 
scruple  had  he  agreed  with  Randolph  and  the  great  majority 
of  his  fellow  delegates  that  public  safety  could  not  be  secured 
under  the  old  system. 

Like  the  Articles  of  Confederation,  the  present  Constitu- 
tion of  the  United  States  rests  upon  the  right  of  revolution. 
But  to  class  the  movement  which  resulted  in  its  adoption 
with  "a  coup  d'etat  of  Julius  or  Napoleon"1  is  to  stress  un- 
duly its  legal,  irregularity.  When  Napoleon  decided  to 
supersede  the  Constitution  of  the  year  III,  he  had  the 
legislative  halls  cleared  by  the  soldiery,  while  Sieyes  pulled 
from  his  pocket  the  new  Constitution  of  the  year  VIII,  and 
the  revolution  was  accomplished.  Even  if  it  be  granted 
that  the  Convention  of  1787  was  due  to  the  "astute  and 
politic  Hamilton's  ability  to  seize  opportunities  and  manip- 
ulate occasions,"  the  resultant  Constitution  was  widely 
different  from  the  plan  which  he  presented  for  consideration. 
During  the  debates,  he  did  not  hesitate  to  express  "his  dis- 
like of  the  government  in  general"  which  was  to  be  set  up 
under  the  projected  Constitution,  while  supporting  it  as 
better  than  nothing. 2  Near  the  close  of  the  proceedings  he 
declared,  "No  man's  ideas  were  more  remote  from  the 
plan  than  his  own  were  known  to  be;  but  is  it  possible,  "he 
asked,  "to  deliberate  between  anarchy  and  convulsion  on 
one  side,  and  the  chance  of  good  to  be  expected  from  the 
plan  on  the  other  ? " 3 

The  letter  from  the  Convention  to  Congress,  which 
accompanied  the  draft  of  the  new  Constitution,  em- 
phasized the  fact  that  it  was  "the  result  of  a  spirit  of 
amity,  and  of  that  mutual  deference  and  concession 

1  Burgess,  Political  Science  and  Constitutional  Law,  vol.  i,  pp.  103-105; 
Beard,  Economic  Interpretation  of  the  Constitution,  62. 

a  Farrand,  The  Records  of  the  Federal  Convention,  vol.  ii,  p.  524. 

3  Farrand,  The  Records  of  the  Federal  Convention,  vol.  ii,  pp.  645,  646. 


18         THE  AMERICAN  CONSTITUTION        §  7 

which  the  peculiarity  of  our  political  situation  rendered 
indispensable."1 

Thereafter,  this  document  was  subjected  to  popular  dis- 
cussion for  many  months,  while  conventions  were  chosen 
in  the  various  States  to  decide  for  or  against  its  adoption. 
Neither  the  Congress  which  was  to  be  displaced,  nor  the 
State  conventions  were  overawed  by  soldiers.  On  the  con- 
trary, elections,  discussions,  and  convention-voting  pro- 
ceeded in  an  orderly  manner  in  accordance  with  established 
civil  usage.  To  call  a  movement,  which  extended  over  such 
a  period,  which  developed  gradually  under  the  influence  of 
changing  public  opinion,  and  which  terminated  without 
resort  to  military  violence,  a  coup  d'etat,  is  to  wrench  the 
term  from  its  ordinary  meaning  and  to  rob  it  of  all  sinister 
suggestion.  So  applied,  the  term  arrests  attention,  but  is  it 
really  descriptive?2 

§7.  The  Constitution  as  a  Product  of  Practical  Experience. 
Not  only  the  history  of  its  framing  but  the  contents  of  the 
Constitution  preclude  the  view  that  it  is  an  achievement  in 
political  speculation.  Its  sponsors  did  not  present  it  to 
their  constituents  as  a  brand-new  conception.  On  the  con- 
trary, they  were  careful  to  point  out  that  its  "great  prin- 
ciples may  be  conceived  less  as  absolutely  new,  than  as. the 
expansion  of  principles  which  are  found  in  the  Articles  of 
Confederation."  They  believed  that  those  principles  had 
been  so  enlarged  and  combined  as  to  give  greater  efficiency 
to  the  central  government.  They  had  learned  much  from 
their  experience  under  the  old  system,  and  had  sought  to 
remedy  its  defects. 

Moreover,  state  constitutions  and  political  practices 
furnished  a  valuable  source  of  information.  One  of  the 
strongest  arguments  in  the  Convention  for  superseding  a 

1  Farrand,  The  Records  of  the  Federal  Convention,  vol.  ii,  p.  667. 

3  "There  is  no" English  word  for  coup  d'etat,  as,  fortunately  the  thing 
described  is  alien  to  the  history  of  English-speaking  people.  It  is  the 
seizure  of  the  State,  of  power,  by  force  and  ruse,  the  overthrow  of  the 
form  of  government  by  violence,  by  arms."  Hazen,  French  Revolution 
and  Napoleon,  p.  262. 


§  7        ORIGIN  OF  THE  CONSTITUTION          19 

single  house  with  two  houses  of  Congress,  was  found  in  the 
fact  that  the  bi-cameral  system  had  been  adopted  by 
almost  every  State  and  was  working  well.  The  name  of 
President  for  the  chief  magistrate,  the  office  of  Vice-Presi- 
dent, the  names  of  the  two  branches  of  Congress,  the  great 
function  of  the  judiciary  in  ' '  construing  the  laws  according 
to  the  spirit  of  the  Constitution,  "x  were  copied  from  state 
institutions. 

On  the  other  hand,  the  baleful  experience  of  the  States 
furnished  the  reasons  for  many  of  the  prohibitions  upon 
state  action,  such  as  emitting  bills  of  credit,  passing  bills 
of  attainder,  and  laws  impairing  the  obligation  of  con- 
tracts.2 

In  short,  there  is  little  in  the  Constitution  which  is  not 
accounted  for  by  the  conviction  that  there  were  serious 
defects  in  the  Articles  of  Confederation,  and  that  certain 
experiments  in  state  legislation  had  proved  harmful,  or 
that  certain  forms  of  governmental  machinery  in  the  States 
had  achieved  success.  The  Convention  had  acted  upon 
Dickinson's  maxim,  ''Experience  must  be  our  only  guide, 
Reason  may  mislead  us."3 

The  members  of  the  Convention  never  claimed  that  the 
Constitution  was  perfect.  Each  one  had  been  obliged  to 
surrender  so  many  items  of  his  governmental  creed,  that  he 
could  not  champion  this  medley  of  compromises  as  an  ideal 
document.  The  letter  from  the  Convention  to  Congress, 
already  referred  to,  modestly  disclaimed  the  expectation 
that  it  would  ' '  meet  the  full  and  entire  approbation  of  every 
State."  The  writers  of  The  Federalist  repudiated  the  idea 
of  its  being  a  faultless  plan ;  admitted  that ' '  The  convention 
as  a  body  of  men  were  fallible, "  and  asked  only  that  they 
and  their  work  should  receive  a  fair  and  candid  considera- 
tion. "Allowances  ought  to  be  made  for  the  difficulties 
inherent  in  the  very  nature  of  the  undertaking,"  they 
insisted,  and  credit  should  be  given  them  for  providing  "a 

1  Hamilton,  in  No.  81  of  the  Federalist. 

2  Madison,  in  No.  44  of  the  Federalist. 

p.  1312. 


20         THE  AMERICAN  CONSTITUTION        §  8 

convenient  mode  of  rectifying  their  own  errors,  as  future 
experience  may  unfold  them."1 

§8.  The  Critics  of  the  Constitution.  "Once  adopted," 
to  quote  from  a  modern  writer, 2  "the  Constitution  succeeded 
beyond  the  hopes  of  its  most  ardent  advocates.  This  of  course 
was  attributed  to  virtues  inherent  in  the  instrument  itself. 
Respect  and  admiration  developed  and  quickly  grew  into 
what  has  been  well  termed  the '  worship  of  the  Constitution.'" 

This  cult  has  not  been  without  its  opponents.  The 
compromises  in  the  Constitution  on  the  subject  of  slavery 
induced  radical  abolitionists  to  denounce  it  as  "a  covenant 
with  death  and  an  agreement  with  hell."  More  recently  it 
was  subjected  to  criticism  because  of  the  supposed  difficulty 
if  not  impossibility  of  amending  it.  But  the  comparative 
ease  and  speed  with  which  the  Sixteenth,  Seventeenth, 
Eighteenth  and  Nineteenth  Amendments  were  adopted, 
show  the  difficulty  to  have  been  exaggerated.  Whenever  a 
program  of  political  or  social  reform  commends  itself  to  the 
people  as  one  of  vital  importance,  it  is  not  an  impossible 
task,  it  is  not  even  a  difficult  task  to  make  it  a  part  of  the 
Constitution,  in  case  its  object  cannot  be  accomplished  by 
ordinary  legislation. 

One  of  the  latest  discouragements  to  the  worship  of  the 
Constitution  is  based  upon  the  theory  that  it  is  an  economic 
document;  that  the  dynamic  element  in^the  movement  for 
its  adoption  was  the  ownership  of  personality;  that  it  was 
' '  drawn  with  superb  skill  by  men  whose  property  interests 
were  immediately  at  stake ;  and  as  such  it  appealed  directly 
and  unerringly  to  identical  interests  in  the  country  at  large  " ; 
that  the  delegates  who  put  it  into  form  represented  "dis- 
tinct groups  whose  economic  interests  they  understood  and 
felt  in  concrete,  definite  form  through  their  own  personal 
experience  with  identical  property  rights,"  and  that  they 
were  not  "working  merely  under  the  guidance  of  abstract 
principles  of  political  science."3 

1  Madison,  in  No.  37  of  the  Federalist. 

3  Farrand,  The  Framing  of  the  Constitution,  208. 

3  Beard,  Economic  Interpretation  of  the  Constitution,  51,  73,  152,  188. 


§  8        ORIGIN  OF  THE  CONSTITUTION          21 

This  theory  does  not  accord  with  Washington's  view  of 
the  situation  as  disclosed  in  his  confidential  letters  during 
that  period.  He  did  not  find  the  delegates  unified  by  the 
dynamic  force  of  their  common  property  interests. I  On  the 
contrary,  they  were  so  discordant,  that  he  often  despaired 
of  their  agreement.2  He  was  discouraged  by  ''the  con- 
trariety of  sentiment"  with  which  the  convention  was  per- 
vaded, the  "diversity  of  ideas  which  prevailed."3  While 
supporting  the  Constitution,  as  reported  by  the  Conven- 
tion, he  seems  oblivious  of  the  claim  that  it  was  drawn  with 
superb  skill.  He  admitted  that  it  was  not  free  from  imper- 
fections,4 that  it  contained  some  things  that  did  not  accord 
with  his  sentiments.5  He  recognized  that  many  provisions 
were  the  result  of  compromise  and  he  pointed  to  them  as 
proof  of  the  willingness  of  members  to  make  mutual  con- 
cessions and  sacrifices.  He  insisted  that  the  document  had 
"as  few  radical  defects  as  could  well  be  expected,  consider- 
ing the  heterogeneous  mass  of  which  the  Convention  was 
composed  and  the  diversity  of  interests  that  were  to  be 
attended  to."  The  existence  of  a  solidarity  of  property 
interests  among  the  members  of  the  Convention,  and  of  a 
desire  to  make  a  frame  of  government  that  should  protect 
and  advance  these  interests,  upon  which  the  economic 
document  theory  rests,  seems  as  much  at  variance  with  the 
facts  of  history,  as  the  exuberant  language  in  which  Jeffer- 
son described  the  Convention  as  "an  assembly  of  demi- 
gods."6 

When  Necker  was  at  the  height  of  his  fame  as  a  French 
statesman,  Gouverneur  Morris  wrote  of  him: 

"Though  he  understands  man  as  a  covetous  creature, 
he  does  not  understand  mankind — a  defect  which  is 

1  Jefferson's  letter  to  Adams,  Aug.  30,  1787,  Farrand,  The  Records  of 
the  Federal  Convention,  vol.  Hi,  p.  76. 

3  Washington  to  Hamilton,  July  10,  1787,  ibid.,  vol.  iii,  p.  56. 

3  Washington  to  Knox,  Aug.  19,  1787,  ibid.,  vol.  iii,  p.  70. 

4  Washington  to  Humphreys,  Oct.  10,  1787,  ibid.,  vol.  iii,  p.  103. 
s  Washington  to  Newenham,  July  20,  1788,  ibid.,  vol.  iii,  p.  339. 

6  Jefferson  to  Adams,  Aug.  30,  1787,  ibid.,  vol.  iii,  p.  76. 


22         THE  AMERICAN  CONSTITUTION        §  8 

remediless.  He  is  utterly  ignorant  of  politics,  by  which  I 
mean  politics  in  the  great  sense,  or  that  sublime  science 
which  embraces  for  its  object  the  happiness  of  mankind. 
Consequently  he  neither  knows  what  constitution  to 
form,  nor  how  to  obtain  the  consent  of  others  to  such  as 
he  wishes." 

As  we  proceed  with  our  consideration  of  the  frame  of 
government  which  Morris  and  his  fellow  delegates  in  Phila- 
delphia set  up,  we  shall  find,  I  believe,  that  while  they  under- 
stood the  cupidity  of  man,  they  also  understood  mankind; 
that  the  impelling  force  in  their  task  was  not  class  selfish- 
ness, but  a  patriotic  purpose  to  form  a  government  which 
would  minister  to  human  happiness ;  that  they  were  practi- 
cal statesmen  as  well  as  idealists,  and  that  the  Constitution, 
of  whose  shortcomings  they  were  not  ignorant,  has  exercised 
a  great  and  beneficent  influence  for  human  progress. x 

1  For  a  recent  criticism  of  our  form  of  government  and  suggestions 
for  its  betterment,  see  McDonald,  A  New  Constitution  for  a  New 
America. 


CHAPTER  II 

UNION   UNDER  THE  CONSTITUTION 

§9.  Union  of  the  Colonies  under  the  Crown.  A  capital 
defect  in  the  Articles  of  Confederation,  as  we  have  seen, 
was  the  imperfect  bond  of  union  between  the  States  under 
their  provisions.  It  is  true,  that  the  States  had  never  been 
completely  independent  units.  During  the  colonial  period, 
they  had  been  subject  to  the  British  government.  They 
had  been  accustomed  to  appeal  to  it  for  protection  against 
foreign  enemies,  as  well  as  for  the  decision  of  controversies 
between  themselves.  Appeals  had  been  taken  also  by  in- 
dividual citizens  to  the  Privy  Council  from  the  action  of 
colonial  authorities.  Some  of  the  colonies  were  accustomed 
to  send  agents  to  London  to  watch  and  guard  their  interests 
when  these  came  before  various  government  boards. 

And  then,  the  colonies,  while  still  acknowledging  a  com- 
mon allegiance  to  the  mother  country,  had  instituted  an 
informal  union  when  sending  delegates  to  the  first  Con- 
tinental Congress.  On  October  14,  1774,  this  body  issued  a 
Declaration  of  Rights  on  behalf  of  "the  inhabitants  of  the 
English  Colonies  in  North  America."  These  rights  were 
rested  on  "The  immutable  laws  of  nature,  the  principles  of 
the  English  Constitution,  and  the  several  charters  or  com- 
pacts." At  the  same  time,  Congress  did  not  hesitate  to 
pledge  the  assent  of  the  people  of  the  colonies 

"to  the  operation  of  such  Acts  of  Parliament  as  are, 
bona  fide,  restricted  to  the  regulation  of  our  external 
commerce  for  the  purpose  of  securing  the  commercial 
advantages  of  the  whole  empire  to  the  mother  country." 

23 


24         THE  AMERICAN  CONSTITUTION  §§10,11 

In  short,  this  manifesto  was  not  the  several  act  of  each 
colony  but  the  act  of  a  united  body  representing  "the 
inhabitants  of  the  Colonies." 

§  i  o.  Union  for  Defense.  In  the  following  year,  when  the 
Second  Continental  Congress  decided  to  throw  off  all 
allegiance  to  the  British  government,  it  referred  to  its  act 
as  the  dissolution  of  the  political  bands  which  have  con- 
nected one  people  with  another;  and  its  Declaration  of 
Independence  was  sent  out  on  behalf  of  the  "Thirteen 
United  States  of  America. ' '  It  was ' '  these  United  Colonies ' ' 
which  were  declared  to  be  free  and  independent,  with  "full 
power  to  levy  war,  conclude  peace,  contract  alliances,  es- 
tablish commerce,  and  do  all  other  acts  and  things,  which 
Independent  States  may  of  right  do."1 

The  Union  as  thus  described,  carried  on  the  Revolu- 
tionary War,  sent  its  diplomatic  representatives  to  other 
governments,  and  entered  into  foreign  alliances.  Through 
Congress,  it  gave  to  several  States,  upon  their  request,  advice 
as  to  the  organization  of  their  governments,  in  order  that 
public  affairs  might  be  conducted  by  them  in  an  orderly  man- 
ner, but  no  longer  in  subordination  to  the  British  Crown. 2 

§11.  Union  under  the  Articles  of  Confederation.  Con- 
gress also  prepared  Articles  of  Confederation  with  the 
avowed  purpose  of  establishing  a  perpetual  union  between 
the  States.3  Under  these  Articles  each  State  retained  "its 

1  See  Corwin,  National  Supremacy,  30. 

3  The  preamble  of  the  New  York  Constitution  of  1 777  recites  that 
Parliament  had  excluded  the  inhabitants  of  these  united  colonies  from 
the  protection  of  the  Crown;  that  the  Continental  Congress  had  advised 
the  respective  assemblies  and  conventions  of  the  united  colonies  to  adopt 
such  government  as  shall,in  the  opinion  of  the  representatives  of  the 
people,  best  conduce  to  the  happiness  and  safety  of  their  constituents 
in  particular  and  of  America  in  general.  It  recites  the  Declaration  of 
Independence  by  Congress  and  approves  of  it. 

The  Constitution  of  Georgia  of  1 777  bears  witness  also  to  the  fact  that 
separation  from  the  mother  country  was  the  act  of  the  united  colonies 
as  a  nation  and  not  as  separate  political  units. 

3  Although  this  document  was  signed  by  eight  States  on  July  9, 1 778,  it 
did  not  become  effective  until  the  thirteenth  State — Maryland — ratified 
it,  March  I,  1781.  Congress  was  organized  under  it  the  following  day. 


§  ii  UNION  UNDER  THE  CONSTITUTION     25 


sovereignty.  frgpHnm  _  and  —  independence,  and  every 
power,  jurisdiction  and  right  which  is  not  by  this  Con- 
federation expressly  delegated  to  the  United  States  in 
Congress  assembled,  '  '  but  no  State  was  permitted,  without 
the  consent  of  Congress,  to  send  or  receive  ambassadors, 
or  to  enter  into  any  conference,  agreement,  alliance  or 
treaty  with  any  king,  prince  or  State,  or  to  lay  any  im- 
ports which  might  interfere  with  treaties  entered  into  by 
the  Union,  or  to  keep  a  navy  or  an  army  in  time  of  peace, 
or  to  engage  in  war,  except  when  actually  invaded. 

On  the  other  hand,  the  Articles  gave  to  the  Union,  "the 
sole  and  exclusive  right  and  power  of  determining  on  peace 
and  war,"  of  "sending  and  receiving  ambassadors,  and  of 
entering  into  treaties  and  alliances." 

The  United  States  in  Congress  assembled  was  made  '  '  the 
last  resort  on  appeal  in  all  disputes  and  differences"  be- 
tween two  or  more  States.  To  the  federal  government, 
also,  was  given  the  exclusive  right  of  regulating  the  alloy 
and  value  of  coin;  of  fixing  the  standard  of  weights  and 
measures,  of  establishing  and  regulating  interstate  post- 
offices,  of  appointing  all  officers  of  the  navy  and  all  officers 
of  the  land  forces,  excepting  regimental  officers,  and  of 
making  all  rules  for  the  government  of  land  and  naval 
forces. 

^Undoubtedly,  the  States,  after  their  separation  from  the 
mother  country,  exercised  a  several  sovereignty  in  all 
matters  of  domestic  legislation.  They  confiscated  property,  x 
regulated  its  acquisition  and  transmission,  invaded  the 
contract  rights  of  individuals,  2  and  exercised  general  control 

1  Ware  v.  Hylton  (1796)  3  Dallas  199,  upholding  a  statute  of  Virginia 
which  confiscated  debts  due  to  British  subjects  from  the  citizens  of 
Virginia.  At  p.  231,  several  English  cases  are  cited  which  recognized 
the  validity  of  statutes  of  Georgia  and  of  New  York,  which  confiscated 
real  and  personal  property. 

a  Owens  v.  Speed  (1820)  5  Wheaton  420,  sustaining  the  validity  of  a 
Virginia  statute  which  vested  in  certain  persons  a  tract  of  land,  which 
the  State  had  previously  granted  to  others.  It  was  admitted  that  the 
statute  would  have  been  invalid,  as  impairing  the  obligation  of  a  con- 
tract, had  it  been  passed  after  the  adoption  of  the  Constitution. 


26         THE  AMERICAN  CONSTITUTION  §§12,13 

of  all  matters  of  internal  police.  But  in  their  relations  with 
other  powers  they  were  a  political  unit. z 

§12.  Weaknesses  of  the  Union  under  the  Articles  of 
Confederation.  So  long  as  the  Confederation  was  menaced 
by  a  common  foe,  there  was  little  danger  that  the  States 
would  attempt  the  roles  of  independent  sovereignties.  With 
the  declaration  of  peace,  however,  external  pressure  was 
lessened,  and  the  defective  character  of  the  bond  of  union 
was  soon  disclosed.  For  example,  Congress  had  the  con- 
stitutional right  to  incur  charges  for  the  common  defense 
and  general  welfare,  to  be  defrayed  out  of  a  common  treas- 
ury, which  should  be  supplied  by  the  States.  It  had  no 
power  to  compel  the  States  to  perform  their  obligations  to 
supply  funds  to  the  central  government.  During  the  war, 
it  had  incurred  a  large  indebtedness,  and  had  made  con- 
stitutional requisitions  upon  the  States  for  their  several 
quotas  with  which  to  discharge  it,  only  to  have  its  demands 
postponed  or  refused. 

Early  in  1787,  Madison,  then  a  delegate  in  Congress  from 
Virginia,  wrote  to  Governor  Randolph: 

"Our  situation  is  becoming  every  day  more  and  more 
critical.  No  money  comes  into  the  Federal  Treasury; 
no  respect  is  paid  to  the  Federal  authority,  and  people  of 
reflection  unanimously  agree  that  the  existing  confeder- 
acy is  tottering  to  its  foundation." 

It  was  this  feeling  which  led,  as  we  have  seen,  to  the  Con- 
vention in  Philadelphia,  and  induced  that  body  to  forego 
an  attempt  to  amend  the  Articles  of  Confederation  and  to 
frame  a  new  Constitution. 

§13.  A  "More  Perfect  Union"  under  the  Constitution. 
It  is  not  surprising,  therefore,  that  the  Constitution  places 
first  among  the  objects  it  was  intended  to  accomplish,  the 

1  In  Respublica  v.  Sweers  (1770)   I  Dallas    41,  it  was  held  that  the 
United  States  were  a  body  corporate  from  the  moment  of  their  associa 
tion  as  States  independent  of  Great  Britain;  and  that  the  forgery  of  a 
receipt  on  behalf  of  the  United  States  was  a  crime  against  them  as  such 
body  corporate. 


§  13  UNION  UNDER  THE  CONSTITUTION      27 

formation  of  a  "more  perfect  Union."  While  the  United 
States  had  come  into  existence  as  a  political  unit  and  had 
won  recognition  as  a  new  member  in  the  family  of  nations, 
it  was  organized  with  a  weak  and  inefficient  government.1 
In  the  language  of  Randolph,  it  could  not  secure  the 
country  against  foreign  invasion,  for  it  could  not  con- 
trol the  conduct  of  the  States,  which  might  provoke  war. 
It  could  not  check  the  quarrels  between  States,  nor  a  re- 
bellion in  any  of  them.  It  could  not  levy  and  collect 
imposts,  nor  make  commercial  regulations  for  its  benefit. 
It  could  not  defend  itself  against  the  encroachments  of  the 
States. 

That  this  opinion  was  shared  by  the  great  majority  of  the 
Convention,  is  apparent  from  the  first  resolution  passed  by 
that  body,  "that  a  national  government  ought  to  be  es- 
tablished, consisting  of  a  supreme  legislative,  judiciary  and 
executive."  Although  the  word  "national"  was  discarded 
by  the  Convention  later,  the  supremacy  of  the  new  govern- 
ment remained  unquestioned.  The  Constitution  asserts 
that  it  was  made  by  "the  people  of  the  United  States"  and 
"for  the  United  States  of  America."  It  and  all  laws  and 
treaties  made  in  pursuance  thereof  are  declared  "  to  be  the 
supreme  law  of  the  land." 

Unlike  its  predecessor,  the  new  government  was  to  oper- 
ate directly  upon  the  individual.  Full  coercive  power  was 
given  to  it,  but  this  power  was  to  be  exercised  not  against 
the  States  in  their  political  capacity.  The  coercion  was  to 
be  applied  to  persons  who  refused  obedience  to  its  laws. 
The  States  were  not  associated  as  a  league  of  sovereignties, 
but  were  brought  together  in  a  closer  union  than  before  and 
under  a  national  government.  They  were  not  destroyed  as 
political  units.  Their  constitutions  and  governmental 
machinery  were  not  overturned.  Most  of  their  functions 
were  not  affected.  But  the  people  of  the  States,  by  adopt- 
ing the  Constitution,  had  bound  themselves  together  as  a 

1  "The  Articles  of  Confederation  created  only  a  central  government, 
and  that,  too,  of  the  weakest  character."  Burgess,  Political  Science 
and  Constitutional  Law,  vol.  i,  p.  101. 


28         THE  AMERICAN  CONSTITUTION  §§14,15 

nation,  and  had  established  a  government,  which,  within 
the  sphere  assigned  to  it,  was  to  be  supreme. 

§14.  The  Doctrine  of  States' Rights  and  Secession.  Later 
this  doctrine  of  national  supremacy  was  repudiated  by  the 
supporters  of  States'  rights.  It  was  argued  that  when  the 
colonies  threw  off  their  allegiance  to  the  British  Crown, 
each  became  an  independent  and  sovereign  State ;  that  it  was 
entitled  to  do  what  was  right  in  its  own  sight  and  did  so  act 
even  when  such  conduct  violated  its  obligations  under  the 
Articles  of  Confederation ;  that  the  Union  of  the  States  under 
the  Constitution  ^was  the  result  of  a  compact  between 
them ;  like  any  other  compact  it  was  dissoluble  by  one  party 
when  violated  by  the  other,  and  each  State  was  to  be  the 
judge  of  its  right  to  withdraw  from  the  Union  or  to  nullify 
federal  legislation.1 

§15.  The  Constitution  Looks  to  an  Indissoluble  Union. 
It  seems  unnecessary  to  further  review  this  controversy 
which  terminated  in  the  Civil  War.  The  student  of  our 
constitutional  law  finds  an  authoritative  statement  of  the 
doctrine  accepted  by  the  Supreme  Court  of  the  United 
States  in  the  following  language : 

"It  is  needless  to  discuss  at  length  the  question  whether 
the  right  of  a  State  to  withdraw  from  the  Union  for  any 
cause,  regarded  by  herself  as  sufficient,  is  consistent  with 
the  Constitution  of  the  United  States. 

1  These  views  are  considered  in  Lodge's  Life  and  Letters  of  George 
Cabot,  and  in  the  great  debates  in  the  United  States  Senate  between 
Webster  and  Hayne  in  1830  and  between  Webster  and  Calhoun  in  1833. 
The  different  views  with  regard  to  the  nature  of  the  Union  are  fully 
presented  in  Story  on  the  Constitution  (5th  ed.),  chap.  3,  and  in  J.  R. 
Tucker's  Constitution  of  the  United  States,  chap.  5. 

An  early  threat  of  secession  came  from  New  England.  On  January  14, 
1811,  when  the  act  for  the  admission  of  Louisiana  into  the  Union  was 
before  Congress,  Josiah  Quincy  said:  "It  is  my  deliberate  opinion,  that, 
if  this  bill  passes,  the  bonds  of  this  Union  are  virtually  dissolved;  that 
the  States  which  compose  it  are  free  from  their  moral  obligations;  and 
that,  as  it  will  be  the  right  of  all,  so  it  will  be  the  duty  of  some,  to  pre- 
pare definitely  for  a  separation,  amicably  if  they  can,  violently  if  they 
must."  3  Amer.  Hist.  Told  by  Contemporaries  (A.  B.  Hart),  410  to  414. 


§  15  UNION  UNDER  THE  CONSTITUTION      29 

"The  union  of  the  States  never  was  a  purely  artificial 
and  arbitrary  relation.  It  began  among  the  colonies,  and 
grew  out  of  common  origin,  mutual  sympathies,  similar 
interests,  and  geographical  relations.  It  was  confirmed 
and  strengthened  by  the  necessities  of  war,  and  received 
^definite  form,  and  character,  and  sanction  from  the 
Articles  of  Confederation.  By  these  the  Union  was 
solemnly  declared  to  'be  perpetual.'  And  when  these 
Articles  were  found  to  be  inadequate  to  the  exigencies  of 
the  country,  the  Constitution  was  ordained  'to  form  a 
more  perfect  Union.'  It  is  difficult  to  convey  the  idea 
of  indissoluable  unity  more  clearly  than  by  these  words. 
What  can  be  indissoluble  if  a  perpetual  union,  made  more 
perfect,  is  not? 

"But  the  perpetuity  and  indissolubility  of  the  Union,  by 
no  means  involves  the  loss  of  distinct  and  individual 
existence,  or  of  the  right  of  self-government  by  the  States. 
Under  the  Articles  of  Confederation  each  State  retained 
its  sovereignty,  freedom,  and  independence,  and  every 
power,  jurisdiction,  and  right  not  expressly  delegated 
to  the  United  States.  Under  the  Constitution,  though 
the  powers  of  the  States  were  much  restricted,  still,  all 
powers  not  delegated  to  the  United  States,  nor  prohibited 
to  the  States,  are  reserved  to  the  States  respectively,  or 
to  the  people.  And  we  have  already  had  occasion  to 
remark  at  this  term,  that  'the  people  of  each  State 
compose  a  State,  having  its  own  government,  and  en- 
dowed with  all  the  functions  essential  to  separate  and 
independent  existence,'  and  that  'without  the  States 
in  union,  there  could  be  no  such  political  body  as  the 
United  States.'1  Not  only  therefore,  can  there  be  no 
loss  of  separate  and  independent  autonomy  to  the  States, 
through  their  union  under  the  Constitution,  but  it  may 
be  not  unreasonably  said  that  the  preservation  of  the 
States,  and  the  maintenance  of  their  governments,  are 
as  much  within  the  design  and  care  of  the  Constitution 
as  the  preservation  of  the  Union  and  the  maintenance  of 
1  County  of  Lane  v.  Oregon  (1868)  7  Wallace  71,  76. 


30         THE  AMERICAN  CONSTITUTION       §  15 

the  National  government.  The  Constitution  in  all  its 
provisions,  looks  to  an  indestructible  Union,  composed 
of  indestructible  States. 

"When,  therefore,  Texas  became  one  of  the  United 
States,  she  entered  into  an  indissoluble  relation.  All  the 
obligations  of  perpetual  union,  and  all  the  guaranties  of 
republican  government  in  the  Union,  attached  at  once  to 
the  State.  The  act  which  consummated  her  admission 
into  the  Union  was  something  more  than  a  compact;  it 
was  the  incorporation  of  a  new  member  into  the  political 
body.  And  it  was  final.  The  union  between  Texas  and 
the  other  States  was  as  complete,  as  perpetual,  and  as 
indissoluble  as  the  union  between  the  original  States. 
There  was  no  place  for  reconsideration  or  revocation 
except  through  revolution,  or  through  consent  of  the 
States. 

"Considered,  therefore,  as  transactions  under  the  Con- 
stitution, the  ordinance  of  secession,  adopted  by  the 
convention  and  ratified  by  a  majority  of  the  citizens  of 
Texas,  and  all  the  acts  of  her  Legislature  intended  to  give 
effect  to  that  ordinance,  were  absolutely  null.  They  were 
utterly  without  operation  in  law.  The  obligations  of  the 
State,  as  a  member  of  the  Union,  and  of  every  citizen  of 
the  State,  as  a  citizen  of  the  United  States,  remained 
perfect  and  unimpaired.  It  certainly  follows  that  the 
State  did  not  cease  to  be  a  State,  nor  her  citizens  to  be 
citizens  of  the  Union.  If  this  were  otherwise,  the  State 
must  have  become  foreign,  and  her  citizens  foreigners. 
The  war  must  have  ceased  to  be  a  war  for  the  suppression 
of  rebellion,  and  must  have  become  a  war  for  conquest 
and  subjugation. 

"Our  conclusion,  therefore,  is,  that  Texas  continued  to 
be  a  State  and  a  State  of  the  Union,  notwithstanding  the 
transactions  to  which  we  have  referred.  .  .  .'J!£~ 

1  Chief  Justice  Chase  ^TexaBv.Wh^s^i  868)  7  Wallace  700,  724  to 
726. 

There  is,  of  course,  a  "States'  rights"  position  which  is  perfectly  de- 
fensible and  constitutional,  namely,  that  which  supports  our  dual 


§  16  UNION  UNDER  THE  CONSTITUTION      31 

§16.  Some  Comparisons  with  the  Constitutions  of  Canada 
and  Australia.  It  is  interesting  to  compare  "the  true 
federal  model"  as  Lord  Haldane1  has  styled  our  political 
system,  with  the  Canadian  Federation,  under  the  British 
North  American  Act  of  1867.  Parliament  enacted 
this  legislation  at  the  request  of  the  three  provinces 
of  Canada,  Nova  Scotia,  and  New  Brunswick.  The 
preamble  refers  to  their  desire  to  be  federally  united 
into  one  Dominion,  under  the  British  Crown,  "with 
a  constitution  similar  to  that  of  the  United  Kingdom.'" 
Unlike  the  thirteen  States  which  adopted  our  Constitution 
these  Provinces  did  not  retain  their  legal  individuality.  On 
the  contrary,  they  asked  that  one  of  them  be  divided  so  as 
to  form  two  separate  Provinces  with  the  new  names  of 
Ontario  and  Quebec.  Moreover,  the  Act  provides  not  only 
a  constitution  for  the  federal  government,  but  new  con- 
stitutions for  the  provincial  governments.  Under  this 
arrangement,  the  federal  government  has  all  legislative 
power  not  granted  to  the  Provinces.  The  rule  referred  to  by 
Chief  Justice  Chase  as  formulated  in  our  Tenth  Amend- 
ment is  reversed  in  the  Canadian  Constitution.  Accord- 
ingly, the  Provinces  possess  no  "powers  of  legislation  either 
inherent  in  them  or  dating  from  a  time  anterior  to  the 
Federation  Act.  .  .  .  Whatever  is  not  hereby  given  to  the 
provincial  legislatures  rests  with  the  Dominion  parliament. ' ' 2 

Moreover,  the  federal  government  in  Canada  has  a  veto 
power  over  provincial  legislation.  An  authentic  copy  of 
every  provincial  act  must  be  sent  to  the  Governor-General 
in  Council,  who  may  disallow  it,  and,  upon  the  signification 
of  this  decision  in  the  prescribed  manner,  the  act  is  annulled. 

scheme  of  government,  believing  that  local  affairs  should  under  the 
Constitution  be  controlled  by  the  States,  and  earnestly  defending  local 
self-government  by  the  States  from  encroachment  at  the  hands  of 
the  central  government.  We  shall  see  a  strong  trend  toward  the  central- 
ization of  power  in  the  national  government,  which  is  naturally  arousing 
such  advocates  of  States'  rights  to  apprehension  and  remonstrance. 

1  Attorney-General  &  c.  v.  Colonial  Sugar  Company  (1914)  Appeal 
Cases  237,  253. 

3  Bank  of  Toronto  v.  Lambe  (1887)  12  Appeal  Cases  575. 


32         THE  AMERICAN  CONSTITUTION       §  16 

The  power  is  not  exercised  often.  Requests  for  disallow- 
ance on  the  ground  that  an  act  unjustly  interferes  with 
vested  rights  were  formerly  granted,  but  the  practice  was 
changed,  and  it  is  said  to  be  well  settled  now,  "that  the 
federal  government  will  not  disallow  provincial  acts  on  the 
ground  that  they  are  ultra  vires,  unless  they  are  seriously 
injurious  to  Imperial  or  Dominion  policies  or  interests."1 

The  intention  of  the  framers  of  the  Canadian  Constitution 
to  strengthen  the  power  of  the  Central  government  at  the 
expense  of  the  Provinces,  was  formed  during  our  Civil  War,2 
with  a  view  to  silencing  any  claim  on  the  part  of  the  Prov- 
inces to  annul  federal  legislation  or  to  exercise  a  constitu- 
tional right  of  secession.3 

After  the  integrity  of  our  Union  had  been  assured  by  the 
suppression  of  the  rebellion,  the  colonies  of  Australia,  under 
parliamentary  sanction  organized  a  federal  government. 
They 

"adopted  the  principle  established  by  the  United  States 
in  preference  to  that  chosen  by  Canada,  .  .  .  the  prin- 
ciple which  is  federal  in  the  strict  sense  of  that  term, 
namely,  that  the  federating  States,  while  agreeing  to  a 
delegation  of  a  part  of  their  powers  to  a  common  govern- 
ment preserved  in  other  respects  their  individual  consti- 
tutions unaltered."4 

In  other  words,  the  federal  government  of  Australia,  like 
ours,  is  one  of  enumerated  powers,  while  the  state  govern- 
ments retain  all  powers  not  surrendered. 

Moreover,  the  Australian  Constitution  not  only  has 
adopted  the  same  federal  principle  as  is  embodied  in  ours, 
but,  at  times,  it  has  copied  its  exact  language.  Hence  we  find 
the  Australian  courts  citing  and  following  our  judicial  de- 

1  LeFroy,  Canadian  Federal  System,  40. 

a  In  re  Prohibition  Liquor  Laws  (1894)  24  Canada  Sup.  Ct.  170,  205- 
207,  233. 

3  The  British  North  American  Act  of  1867  was  founded  on  the 
Quebec  Resolutions  of  1864.    Atty. -General  &c.  v.  Colonial  Sugar  Re- 
fining Co.  (1914)  Appeal  Cases  237,  253. 
237,254. 


§  1 6  UNION  UNDER  THE  CONSTITUTION     33 

cisions.  While  they  are  not  bound  by  such  decisions,  they 
do  give  great  weight  to  those  especially  which  were  ren- 
dered prior  to  the  adoption  of  the  Australian  Constitution 
in  1900.  This  is  upon  the  theory  that  when  one  of  our 
constitutional  provisions,  which  had  received  judicial 
construction,  was  adopted  by  the  Australian  Common- 
wealth, it  was  taken  over  with  the  interpretation  thus  put 
upon  it.1 

1  Baxter  v.  Commissioners  of  Taxation  (1907)  4  Commonwealth  Law 
Reports  1087,  1122:  "It  ought  to  be  inferred  that  the  intention  of  the 
framers  was  that  like  provisions  should  receive  like  interpretations." 

3 


CHAPTER  III 

AMENDING  THE   CONSTITUTION 

§17.  Methods  of  Changing  Constitutions.  The  form,  the 
functions,  and  the  powers  of  a  government  may  be  changed 
in  either  a  legal  or  in  an  extra-legal  manner.  When  the 
manner  of  making  the  change  is  extra-legal  we  call  it  revolu- 
tionary. When  we  speak  of  a  revolution  we  generally  think 
of  a  violent  political  upheaval,  but  there  are  peaceful 
revolutions  as  well  as  those  which  are  accompanied  with 
violence.  Though  the  means  adopted  to  bring  about  a 
change  in  government  are  not  in  accordance  with  the  pro- 
visions of  the  law,  if  the  revolution  is  successful,  and  the 
changes  are  acquiesced  in  by  the  people,  the  resulting 
government  is  in  all  respects  authoritative,  and  its  acts  are 
binding  upon  its  citizens.  The  government  which  was  set 
up  in  this  country  under  the  Articles  of  Confederation  was 
obviously  revolutionary,  but  the  treaty  of  peace  entered  into 
by  that  government  with  England  was  clearly  valid. 
Furthermore,  the  constitutional  government  which  has 
existed  now  in  the  United  States  for  more  than  a  century 
and  a  quarter  was  revolutionary  in  its  origin.  The  Articles 
of  Confederation  declared,  "nor  shall  any  alteration  at  any 
time  hereafter  be  made  in  any  of  them  [the  Articles  of  Con- 
federation]; unless  such  alteration  be  agreed  to  in  a  Con- 
gress of  the  United  States,  and  be  afterwards  confirmed  by 
the  legislatures  of  every  State."1  But  instead ,of  the  course 
here  provided  for  being  followed  in  1787,  a  new  Constitution 
was  then  framed  by  a  constitutional  convention,  and  it  was 
declared  that  it  should  be  effective  when  ratified  by  nine 
States,  and  the  new  Constitution  in  fact  went  into  effect 

'  Art.  XIII. 

34 


§  i8      AMENDING  THE  CONSTITUTION         35 

before  it  was  ratified  by  North  Carolina  and  Rhode  Island. 
The  government  set  up  by  the  Confederate  States  at  the 
time  of  the  Civil  War  was,  of  course  revolutionary,  but  if  the 
Southern  States  had  won  in  that  war,  the  government  which 
they  had  set  up,  and  which  was  acquiesced  in  by  the  people 
of  the  seceding  States,  would  have  acquired  a  valid  status. 
§18.  The  Constitutional  Provision  for  Amendment.  The 
Constitution  of  the  United  States  makes  careful  provision 
for  the  amendment  of  that  instrument,  as  follows1 : 

"The  Congress,  whenever  two  thirds  of  both  houses 
shall  deem  it  necessary,  shall  propose  amendments  to  the 
Constitution,  or,  on  the  application  of  the  legislatures  of 
two  thirds  of  the  several  States,  shall  call  a  convention 
for  proposing  amendments,  which  in  either  case  shall  be 
valid  to  all  intents  and  purposes  as  part  of  this  Constitu- 
tion, when  ratified  by  the  legislatures  of  three  fourths  of 
the  several  States,  or  by  conventions  in  three  fourths 
thereof,  as  the  one  or  the  other  mode  of  ratification  may 
be  proposed  by  the  Congress,  provided  that  no  amend- 
ments which  may  be  made  prior  to  the  year  one  thousand 
eight  hundred  and  eight  shall  in  any  manner  affect  the 
first  and  fourth  clauses  in  the  ninth  section  of  the  first 
article;  and  that  no  State,  without  its  consent,  shall  be 
deprived  of  its  equal  suffrage  in  the  Senate." 

Since  the  federal  government  is  one  of  limited  powers  it 
seems  correct  to  assume  that  Congress  cannot  set  any 
machinery  in  motion  for  the  amendment  of  the  Constitution 
except  in  one  of  the  ways  provided  for  in  that  instrument;2 
and  in  fact  there  would  seem  no  reason  for  any  attempt  to 
use  any  other  method,  in  view  of  the  alternatives  contained 
in  Article  Five,  quoted  above. 

'Art.  V. 

3  Jameson,  Constitutional  Conventions  (4th  ed.),  sec.  575.  The  var- 
ious methods  by  which  state  constitutions  can  be  amended  are  outside 
the  scope  of  this  work,  though  they  are  interesting  in  themselves.  See 
generally  Jameson,  Constitutional  Conventions  (4th  ed.)f  and  Dodd, 
The  Revision  and  Amendment  of  State  Constitutions. 


36         THE  AMERICAN  CONSTITUTION       §  19 

Until  recently  it  has  been  thought  that  the  amendment 
of  the  Constitution  would  be  very  difficult  except  in  periods 
of  crisis,  such  as  followed  the  adoption  of  the  Constitution 
and  the  Civil  War.  Four  amendments,  however,  have  been 
added  with  comparative  ease  and  rapidity  since  1909,  so 
that  the  feeling  on  this  point  has  probably  been  consider- 
ably modified.  Still  the  feeling  that  has  been  spoken  of  has 
led  from  time  to  time  to  suggestions  for  changing  the  amend- 
ing machinery.  One  of  the  simpler  proposals  is  that  the 
Constitution  be  so  amended  as  to  allow  submission  of  future 
amendments  to  the  electors  in  the  several  States  as  well  as 
to  the  legislatures  or  to  conventions,  and  that  a  six  years' 
period  of  limitation  be  put  upon  the  States'  power  of  ratifi- 
cation. Another  proposed  change  would  require  the  sub- 
mission to  the  voters  of  the  several  States  every  twenty 
years  of  the  question  as  to  whether  a  federal  constitutional 
convention  should  be  called.  Other  proposals  would  allow 
Congress  to  submit  amendments  by  a  majority  vote,  or 
would  allow  either  House  to  submit  amendments  alone  if 
twice  rejected  by  the  other  House,  or  would  require  the 
submission  of  amendments  upon  the  vote  of  the  electors  or 
legislatures  of  ten  or  some  other  number  of  States.  Still 
other  proposals  would  require  the  submission  of  amend- 
ments to  the  electors  at  large,  and  would  make  ratification 
depend  upon  a  majority  vote,  plus  a  favorable  vote  in  a 
majority  of  States  or  congressional  districts.1  Notwith- 
standing the  many  suggestions  which  have  been  made,  it 
now  seems  unlikely  that  the  amending  machinery  will  be 
changed  within  the  near  future. 

§19.  Proposal  of  Amendments.  There  has  never  been 
an  application  by  two  thirds  of  the  States  for  a  Constitu- 
tional Convention  for  proposing  amendments,  all  amend- 
ments having  been,  up  to  the  present  time,  proposed  by 
Congress.  As  we  have  seen  the  Constitution  provides  that 

1 W.  F.  Dodd,  "Amending  the  Federal  Constitution,"  30  Yale  Law 
Journal,  321,  350  to  353;  Ames,  The  Proposed  Amendments  to  the  Con- 
stitution of  the  United  States  during  the  First  Century  of  Its  History,  292 
to  293. 


§  19      AMENDING  THE  CONSTITUTION         37 

"Congress,  whenever  two  thirds  of  both  Houses  shall  deem 
it  necessary  shall  propose  amendments  to  the  Constitution. ' ' x 
In  the  National  Prohibition  Cases2  the  Supreme  Court  stated 
the  rather  obvious  conclusion,  but  one  which  had  been 
combated  by  counsel,  that 

"the  adoption  by  both  Houses  of  Congress,  each  by  a 
two-thirds  vote,  of  a  joint  resolution  proposing  an  amend- 
ment to  the  Constitution  sufficiently  shows  that  the 
proposal  was  deemed  necessary  by  all  who  voted  for  it. 
An  express  declaration  that  they  regarded  it  as  necessary 
is  not  essential.  None  of  the  resolutions  whereby  prior 
amendments  were  proposed  contained  such  a  declara- 
tion." 

In  the  same  cases  it  was  also  very  urgently  insisted  that  the 
requirement  of  a  two-thirds  vote  in  each  House  meant  two 
thirds  of  the  whole  membership,  and  that  two  thirds  of  a 
quorum  was  not  sufficient.  It  is  true  that  some  sections  of 
the  Constitution  expressly  provide  for  congressional  action 
by  a  named  portion  "of  those  present,"3  and  from  this  it 
was  argued  that  when  such  expression  is  not  used  the 
framers  intended  that  action  should  only  be  taken  by  the 
named  portion  of  the  whole  House.  On  the  other  hand  the 
Constitution  provides  that  "a  majority  of  each  [House] 
shall  constitute  a  quorum  to  do  business,"4  and  the  acts  of  a 
quorum  are  for  all  parliamentary  purposes  the  acts  of  the 
body  in  question,  unless  otherwise  provided.  It  would, 
therefore,  follow  that  "two  thirds  of  both  houses,"  when\ 
used  in  the  provision  as  to  amendments  means  two  thirds  I 
of  a  quorum.  This  view  has  been  several  times  taken  by  the 

'  Art.  V. 

a  (1920)  253  U.  S.  350,  386.  This  case  is  peculiar  in  that  no  opinion 
was  written  on  behalf  of  the  majority  of  the  court,  but  conclusions  only 
were  announced.  Chief  Justice  White  wrote  a  concurring  opinion,  and 
Justices  McKenna  and  Clarke  wrote  dissenting  opinions. 

3  Art.  I,  sec.  3,  par.  6  (impeachments),  art.  I,  sec.  5,  par.  3  (recording  of 
yeas  and  nays),  art.  II,  sec.  2,  par.  2  (concurrence  of  Senate  in  treaty 
making). 

«  Art.  I,  sec.  5,  par.  I. 


38         THE  AMERICAN  CONSTITUTION       §  19 

Houses  of  Congress,1  and  was  finally  declared  to  be  the 
correct  one  in  the  National  Prohibition  Cases. 2 

Whether  proposed  amendments  agreed  to  by  Congress 
were  intended  by  the  framers  of  the  Constitution  to  be  sub- 
mitted to  the  President  for  his  approval  is  not  entirely  clear 
from  the  language  of  the  Constitution.  It  is  provided  that 

"every  order,  resolution,  or  vote  to  which  the  concur- 
rence of  the  Senate  and  House  of  Representatives  may  be 
necessary  (except  on  a  question  of  adjournment)  shall  be 
presented  to  the  President  of  the  United  States."3 

This  is  broad  enough  to  cover  joint  resolutions  for  the  sub- 
mission of  amendments.  On  the  other  hand  such  joint 
resolutions  are  not  in  any  sense  legislative,  but  their  purpose 
is  merely  the  submission  of  questions  to  the  States  for  their 
determination;  and  since  such  resolutions  must  be  passed 
in  the  first  place  by  a  two-thirds  vote,  the  usual  effect  of  a 
veto  would  not  exist  in  their  case.  The  view  acted  upon 
by  Congress  has  been  that  such  resolutions  should  not  be 
submitted  to  the  President,4  and  this  practice  is  supported 
by  the  decision  of  the  Supreme  Court  in  floltingsworth  v. 
Virginia. 5  In  that  case  the  court  merely  rendered  a  short 
per  curiam  opinion  to  the  effect  that  the  Eleventh  Amend- 
ment had  been  constitutionally  adopted,  but  Justice  Chase 
during  the  argument  said,  "the  negative  of  the  President 
applies  only  to  the  ordinary  cases  of  legislation:  he  has 
nothing  to  do  with  the  proposition  or  adoption  of  amend- 
ments to  the  Constitution." 

1  Ohio  v.  Cox  (1919)  257  Fed.  334,  348- 

a  (1920)  253  U.  S.  350,  386.  The  court  in  reaching  its  conclusion  cites 
its  decision  rendered  shortly  before  to  the  effect  that  the  constitutional 
provision  for  passing  bills  over  the  President's  veto  by  a  two-thirds  vote 
of  each  House  means  a  two-thirds  vote  of  a  quorum  present.  Missouri 
\Pac.  Ry.  Co.  v.  Kansas  (1919)  248  U.  S.  276.  In  the  opinion  in  the  Na- 
tional  Prohibition  Cases  the  court  put  the  same  interpretation  upon  the 
article  as  to  amendments.  See  also  Ohio  v.  Cox  (1919),  257  Fed.  334. 

s  Art.  I,  sec.  7,  par.  2. 

*  Jameson,  Constitutional  Conventions  (4th  ed.),  586  to  592. 

5  (1798)  3  Dallas  378,  381.    And  see  Hawke  v.  Smith  (1920)  253   U.  S. 

221,  229. 


§  19      AMENDING  THE  CONSTITUTION         39 

It  seems  safe  to  assert  that  Congress,  having  once  sub- 
mitted a  proposed  constitutional  amendment  to  the  States, 
cannot  thereafter  withdraw  it  from  their  consideration, 
although  this  is,  at  present  and  is  likely  to  remain  a  merely 
academic  question. 

The  Eighteenth  Amendment  contains  two  provisions  not 
found  in  any  of  its  predecessors.  The  first  is  that  it  shall  not 
take  effect  until  one  year  from  ratification,  and  the  other 
is  contained  in  the  third  section  of  the  amendment,  which 
declares  that, 

"This  article  shall  be  inoperative  unless  it  shall  have 
been  ratified  as  an  amendment  to  the  Constitution  by  the 
legislatures  of  the  several  States,  as  provided  in  the 
Constitution,  within  seven  years  from  the  date  of  the  sub- 
mission hereof  to  the  States  by  Congress." 

Although  Congress,  under  its  power  "to  make  all  laws  which 
shall  be  necessary  and  proper  for  carrying  into  execution 
the  .  .  .  powers  vested  by  this  Constitution  in  the  Govern- 
ment of  the  United  States, ' ' r  would  seem  to  have  been 
justified  in  its  legislation  which  directs  the  Secretary  of 
State  to  cause  amendments  to  be  promulgated  when  offi- 
cially notified  of  their  adoption  according  to  the  provisions 
of  the  Constitution,2  there  would  seern  to  be  no  justifica- 
tion for  Congress  to  attempt  by  legislation  to  control  the 
method  of  ratification  on  the  part  of  the  States,  the  time 
within  which  they  must  ratify,  or  to  postpone  the  operation 
of  an  amendment  after  its  proper  ratification.  There  seems 
no  possible  objection,  however,  to  a  provision  in  an  amend- 
ment itself  declaring  when  it  shall  take  effect,  since  in  this 
way  is  obtained  an  expression  of  the  will  of  the  people,  and 
not  merely  of  Congress.  While  it  would  clearly  be  objec- 
tionable for  any  State  to  append  to  its  ratification  of  an 
amendment  a  condition  that  such  ratification  should  not  be 
effective  unless  the  amendment  was  ratified  by  the  requisite 
number  of  States  within  a  given  time,  there  seems  no  reason 

1  Const,  of  U.  S.,  art.  I,  sec.  8,  par.  18. 

2  U.  S.  Rev.  Stat.,  sec.  205. 


40         THE  AMERICAN  CONSTITUTION       §  20 

why  a  proposition  for  amending  the  Constitution  submitted 
to  all  of  the  States  should  not  contain  such  a  limitation,  or 
why  the  ratification  by  each  State  should  not  be  controlled 
by  such  limitation.1  It  has  been  considered  a  possibility 
that  a  proposed  amendment,  not  containing  such  a  limita- 
tion, might  finally  be  ratified  by  the  requisite  number  of 
States  fifty  or  a  hundred  years  after  its  submission.  The 
Supreme  Court  has  put  this  fear  at  rest  by  holding  that  the 
Constitution  necessarily  implies  a  reasonable  period  for 
ratification.2  Nevertheless,  it  seems  desirable  that  pro- 
posed amendments  should  themselves  contain  a  limitation 
upon  the  right  of  ratification,  or  that  the  Constitution 
should  be  amended  so  as  to  contain  such  a  limitation.  The 
Supreme  Court  has  held  that  the  provision  on  this  subject 
in  the  Eighteenth  Amendment  is  constitutional.3  The 
provision  in  the  Eighteenth  Amendment  to  the  effect  that 
it  should  not  become  operative  until  a  year  after  ratification, 
was  acted  upon  without  any  question. 

§20.  Ratification  of  Amendments.  The  power  given  to 
Congress  by  the  Constitution  to  submit  proposed  amend- 
ments to  conventions  in  the  various  States  has  never  been 
taken  advantage  of.  As  a  matter  of  fact  it  would  seem  that 
the  will  of  the  people  would  be  much  more  accurately 
expressed  by  conventions  chosen  for  the  purpose  of  con- 
sidering a  proposed  amendment,  than  by  State  Legislatures. 
The  only  two  alternatives  open  to  Congress  under  the 
Constitution4  are  submission  to  state  conventions  or  to  the 
"legislatures"  of  the  States.  During  recent  years  there 
have  been  introduced  into  many  of  the  state  constitutions 
provisions  for  the  use  of  the  referendum  with  regard  to 
state  legislation.  State  courts  have  differed  as  to  whether 
such  provisions  are  intended  to  apply  to  the  act  of  ratifying 

1  Compare  Jameson,  Constitutional  Conventions  (4th  ed.),  634,  and  W. 
F.  Dodd,  "Amending  the  Federal  Constitution,"  jo  Yak  L.  Jour.,  321, 
339  to  341. 

3  Dillon  v.  Gloss  (1921)  41  Supreme  Ct.  R.  510. 

3  Ibid.    The  amendment  was  ratified  by  the  requisite  number  of 
States  within  the  time  specified. 

4  Art.  V. 


§  20      AMENDING  THE  CONSTITUTION         41 

amendments  to  the  Federal  Constitution,  x  but,  as  such  act  is 
not  properly  speaking  an  act  of  legislation,  it  would  seem 
that  the  correct  view  is  that  such  provisions  have  no  appli- 
cation to  federal  constitutional  amendments.  In  Ohio, 
however,  the  state  constitution  was  so  amended  as  to 
reserve  to  the  people ' '  the  legislative  power  of  referendum  on 
the  action  of  the  general  assembly  ratifying  any  proposed 
amendment  to  the  Constitution  of  the  United  States. "  The 
Ohio  Legislature  ratified  the  Eighteenth  Amendment  and 
the  federal  government  was  notified  of  this  action  and  Ohio 
was  counted  as  one  of  the  ratifying  States.  Later,  the  Ohio 
Secretary  of  State  being  about  to  prepare  and  print  ballots 
for  submission  of  a  referendum  to  the  electors  of  the  State 
on  the  question  of  the  ratification  of  the  amendment,  an 
action  was  brought  to  restrain  him  from  doing  so,  which 
finally  reached  the  Supreme  Court  of  the  United  States.2 
As  the  court  said,  the  real  question  was,  ''What  did  the 
framers  of  the  Constitution  mean  in  requiring  ratification 
by  '  Legislatures '?"  The  argument  advanced  in  favor  of  the 
validity  of  the  Ohio  constitutional  provision  was  that ' '  the 
Federal  Constitution  requires  ratification  by  the  legislative 
action  of  the  States  through  the  medium  provided  at  the 
time  of  the  proposed  approval  of  an  amendment."  But  the 
court  immediately  answered : 

"This  argument  is  fallacious  in  this — ratification  by  a 
State  of  a  constitutional  amendment  is  not  an  act  of 
legislation  within  the  proper  sense  of  the  word.  It  is  but 
the  expression  of  the  assent  of  the  State  to  a  proposed 
amendment."3 

Furthermore,  as  the  court  points  out,  the  framers  of  the 
Constitution  distinguished  in  that  instrument  between  the 
electors  of  a  State  and  its  legislature,  and  in  the  provision 
as  to  amendments  clearly  intended  action  to  be  taken  by 

1  See  W.  F.  Dodd,  "Amending  the  Federal  Constitution/'jo  YaleL. 
Jour.,  321,  344,  for  a  collection  of  the  state  decisions  on  the  point. 
aJHawke  v.  Smith  (1920)  253  U.  S.  221. 
3  Ibid.,  229. 


42         THE  AMERICAN  CONSTITUTION       §  20 

representatives  of  the  people  and  not  by  the  people  them- 
selves. The  court,  therefore,  held  that  the  Ohio  constitu- 
tional provision  in  question  was  in  conflict  with  the  federal 
Constitution  and  so  invalid. 

The  provision  in  the  Constitution  is  that  amendments 
shall  be  effective  "when  ratified  by  the  legislatures  of  three- 
fourths  of  the  States."  This  language  would  seem  not  to 
contemplate  or,  in  fact,  to  countenance  any  participation 
by  the  governors  of  the  States  in  the  ratification  or  rejection 
of  amendments.  This  conclusion,  fairly  drawn  from  the 
language  of  the  Constitution,  is  strongly  supported  by  a 
consideration  of  the  nature  of  the  act  of  ratification.  The 
Supreme  Court  has,  as  we  have  seen  in  considering  the 
proposal  of  amendments  and  the  States'  referendum 
provisions,  declared  that  neither  the  proposal  nor  the 
ratification  of  an  amendment  to  the  Federal  Constitution  is  a 
legislative  act.  Since  the  proposal  of  an  amendment  is  not 
a  legislative  act,  it  has  been  held  that  the  President  should 
not  participate  in  that  part  of  the  proceeding.  It  must  be 
equally  true,  then,  that,  since  the  ratification  of  an  amend- 
ment is  not  a  legislative  act,  the  governors  should  not  share 
in  the  act  of  ratification  or  rejection.  However,  the  practice 
on  this  point  has  varied  in  the  different  States.  At  a  com- 
paratively early  date  a  governor  vetoed  the  ratification  of 
an  amendment.  This  was  done  by  the  governor  of  New 
Hampshire  in  the  case  of  the  Twelfth  Amendment.  Suffi- 
cient States  ratified  besides  New  Hampshire,  however,  and 
the  effect  of  the  veto  in  that  State  was  not  considered. ' 

The  Sixteenth  Amendment,  when  ratified  by  the  Arkansas 
Legislature,  was  submitted  to  the  governor  and  vetoed,  but 
the  action  of  the  state  legislature  was  nevertheless  trans- 
mitted to  the  Secretary  of  State,  and  Arkansas  was  counted 
among  the  ratifying  States. 2 

It  was  also  debated  after  the  Civil  War  whether  in  the 

1  See  Ames,  The  Proposed  Amendments  to  the  Constitution  of  the  United 
States  during  the  First  Century  of  Its  History,  297. 

2W.  F.  Dodd,  "Amending  the  Federal  Constitution,"  30  Yale  L. 
Jour.,  321,  346. 


§  20      AMENDING  THE  CONSTITUTION         43 

article  dealing  with  amendments  to  the  Constitution  three 
fourths  of  the  States  meant  three  fourths  of  the  whole  num- 
ber of  States,  or  three  fourths  of  those  which  had  not  seceded 
and  were  at  the  time  participating  in  the  national  govern- 
ment, and  whether  those  which  had  seceded  and  were  not 
yet  reinstated  in  a  participation  in  the  national  government 
might  be  counted  in  determining  whether  an  amendment 
had  been  ratified.  The  Thirteenth  Amendment  was  in 
fact  declared  ratified  when  the  number  of  States  ratifying 
had  reached  three  fourths  of  the  whole  number  of  States, 
and  in  the  number  of  States  ratifying  were  counted  a  num- 
ber of  the  States  which  had  seceded  and  which  were  not  yet 
participating  in  the  federal  government.  Furthermore,  the 
adoption  of  the  Fourteenth  and  Fifteenth  Amendments 
was  procured  by  requiring  ratification  by  States  which  had 
seceded  as  a  condition  precedent  to  their  being  allowed 
representation  in  Congress. J 

There  have  been  a  good  many  instances  when  States 
which  have  rejected  proposed  federal  amendments  have 
later  ratified  these,  and  also  when  States  which  have  ratified 
have  later  tried  to  withdraw  their  ratifications.  There 
seems  no  objection  to  the  former  course  of  action.  Refusal 
to  ratify  is,  after  all,  only  a  negative  sort  of  act,  and  there 
seems  no  reason  why  it  should  preclude  subsequent  ratifica- 
tion. States  which  have  first  rejected  amendments  and  then 
ratified  them  have  been  counted  in  declaring  the  amend- 
ments adopted,  and  the  amendments  have  never  been 
attacked  on  this  ground.2  On  the  other  hand  the  Constitu- 
tion declares  that  an  amendment  shall  become  part  of  that 
instrument  "when  ratified  by  the  legislatures  of  three 
fourths  of  the  States,"  and  this  would  seem  to  mean  that 
the  act  of  ratification  is  final  in  each  case.  It  is  clear,  also, 

1  Ames,  The  Proposed  Amendments  to  the  Constitution  cf  the  United 
States  during  the  First  Century  of  Its  Hi-story,  298. 

3  Jameson,  Constitutional  Conventions  (4th  ed.),  624  to  626.  And 
see  the  joint  resolution  of  the  two  Houses  of  Congress  declaring  the 
validity  of  the  ratification  of  the  Fourteenth  Amendment  by  three 
fourths  of  the  States  including  North  Carolina  and  South  Carolina, 
which  had  previously  rejected  it.  15  Stat.  709  and  710. 


44         THE  AMERICAN  CONSTITUTION       §  21 

that  any  other  doctrine  would  lead  to  great  confusion  in 
determining  when  an  amendment  has  in  fact  been  adopted.1 
Although  this  question  has  not  come  before  the  courts, 
Congress  has  declared  that  a  State  cannot  withdraw  its 
ratification.  Ohio  and  New  Jersey,  having  ratified  the 
Fourteenth  Amendment,  later  attempted  to  withdraw  their 
ratifications.  The  Secretary  of  State  issued  a  certificate  in 
which  he  declared  that  the  amendment  had  been  adopted 
provided  that  Ohio  and  New  Jersey  should  be  counted  as 
having  ratified.  The  next  day  Congress  passed  a  concurrent 
resolution  declaring  the  ratification  valid.2  New  York, 
making  one  of  the  first  twenty-nine  States  (three  fourths 
at  that  time)  which  ratified  the  Fifteenth  Amendment, 
attempted  to  withdraw  her  ratification,  but  at  the  time  of 
the  promulgation  of  the  amendment  another  State,  Georgia, 
had  ratified.3 

§21.  Express  Limitations  on  Power  to  Amend.  The 
Fifth  Article  of  the  Constitution,  dealing  with  amendments 
closes  with  the  proviso 

"that  no  amendments  which  may  be  made  prior  to  the 
year  one  thousand  eight  hundred  and  eight  shall  in  any 
manner  affect  the  first  and  fourth  clauses  in  the  ninth 
section  of  the  first  article;  and  that  no  State,  without  its 
consent,  shall  be  deprived  of  its  equal  suffrage  in  the 
Senate." 

The  first  part  of  this  proviso  has  to  do  with  certain  con- 
stitutional provisions  which  deal  in  fact,  though  not  ex- 
pressly, with  the  institution  of  slavery.  By  its  own  terms, 
it  was  to  become  ineffective  after  1808.  It,  therefore,  has 
no  longer  any  except  an  historical  significance.  The  second 
part  of  the  proviso  was,  of  course,  introduced  to  safeguard 
the  equal  representation  of  the  smaller  States  in  the  Senate.4 

1  Jameson,  Constitutional  Conventions  (4th  ed.),  630  to  633. 
a  15  Stat.  706  to  710. 
3i6Stat.  1131. 

4  "Mr.  Govr.  Morris  moved  to  annex  a  further  proviso—-' that  no  State, 
without  its  consent  shall  be  deprived  of  its  equal  suffrage  in  the  Senate.' 


§  22      AMENDING  THE  CONSTITUTION         45 

It  constitutes  a  limitation  upon  the  amending  power,  which 
can  itself  only  be  changed  by  unanimous  consent  of  the 
States.  Each  State  in  ratifying  the  Constitution,  or  in 
accepting  it  upon  admission  to  the  Union,  has  expressly 
excepted  from  the  amending  power  the  right  to  deprive  it 
or  any  other  State  of  its  equal  suffrage  in  the  Senate.  There- 
fore, any  amendment  which  attempted  to  do  away  with 
equal  representation  in  the  Senate  would  be  unconstitu- 
tional. That  the  question  whether  there  had  been  a  breach 
of  the  proviso  in  the  Fifth  Article  would  be  considered  a 
judicial  one,  and  that  the  Supreme  Court  would  take  juris- 
diction of  it  seems  certain  in  view  of  the  fact  that  that  court, 
in  cases  growing  out  of  the  Eighteenth  Amendment,  took 
jurisdiction  not  only  of  questions  as  to  whether  the  amend- 
ment had  been  properly  proposed  and  properly  ratified,  but 
as  to  whether  its  terms  did  not  overstep  some  implied  limita- 
tions upon  the  amending  power.1 

§  22.  Are  There  Implied,  Limitations  upon  the  Power  to 
Amend?  The  Eighteenth  Amendment  was  vigorously 
attacked  in  the  National  Prohibition  Cases2  by  eminent 
counsel,  including  Elihu  Root,  and  by  writers  in  legal 
periodicals,3  on  the  ground  that  it  overstepped  certain 
implied  limitations  upon  the  constitutional  amending  power. 
It  is  contended  in  the  first  place  that  the  Eighteenth  Amend- 
ment is  not  in  fact  an  "amendment, "  for  an  amendment  is 
an  alteration  or  improvement  of  that  which  is  already 
contained  in.  the  Constitution,  and  the  term  is  not  intended 

"  That  motion  being  dictated  by  the  circulating  murmurs  of  the  small 
States  was  agreed  to  without  debate,  no  one  opposing  it,  or  on  the  ques- 
tion, saying  no." 

Farrand,  The  Records  of  the  Federal  Convention,  vol.  ii,  p.  631. 

LHawke  v.  Smith  (1920)  253  U.  S.  221;  National  Prohibition  Cases 
(1920)  253,  U.  8.350. 

3  Ibid.  See  the  briefs  in  Kentucky  D.  &  W.  Co.  0.  Gregory  and  in 
Rhode  Island  v.  Palmer. 

s  See  J.  D.  White,  "Is  There  an  Eighteenth  Amendment?"  5  Cor.  L. 
Quar.,  113;  W.  L.  Marbury,  "The  Limitations  Upon  the  Amending 
Power," 33  Harv.  L.  Rev.  223;  G.  D.  Skinner,  "Intrinsic  Limitations 
on  the  Power  of  Constitutional  Amendment,"  18  Mich.  L.  Rev.,  213. 


46         THE  AMERICAN  CONSTITUTION       §  22 

to  include  any  addition  of  entirely  new  grants  of  power. 
Charles  E.  Hughes,  in  his  brief  on  behalf  of  a  number  of 
States  as  amid  curia,1  pointed  out  at  length  from  the 
records  of  the  Constitutional  Convention  and  of  the  ratify- 
ing state  conventions  that  the  framers  of  the  Constitution 
contemplated  that  the  framework  of  government  which 
was  being  set  up  would  be  found  imperfect,  and  that  altera- 
tions of  any  kind,  except  those  covered  in  the  proviso,  could 
be  made  at  any  time.2  Again  it  is  contended  that  the 
Eighteenth  Amendment  is  not  an  amendment  within  the 
meaning  of  the  Constitution  because  it  is  in  its  nature 
legislation ;  that  an  amendment  to  the  Constitution  can  only 
affect  the  powers  of  government,  and  cannot  act  directly 
upon  tl^e  rights  of  individuals,  the  latter  power  being 
essentially  legislative.  Answer  is  made  to  this  argument 
that  it  is  directed  to  the  wisdom  and  not  to  the  constitu- 
tionality of  the  amendment;  that  there  is  no  such  restric- 
tion in  the  Constitution  upon  the  amending  power;  that 
as  has  been  pointed  out,  the  framers  of  that  instrument 
apparently  intended  to  give  the  widest  power  of  amend- 
ment; and  that  in  the  Thirteenth  Amendment  we  have  a 
precedent  for  an  amendment  which  acted  directly  upon 
individuals,  and  directly  deprived  them  of  their  property  in 
slaves.3 

The  final  and  fundamental  argument  against  the  Eigh- 
teenth Amendment  is  based  upon  the  proposition  that  "the 
Constitution  in  all  its  parts  looks  to  an  indestructible  nation 
composed  of  indestructible  States."4  It  is  insisted  that  this 
conception  is  the  very  basis  of  our  Union;  that  the  power 
of  amendment  was  only  given  for  the  purpose  of  making 
alterations  and  improvements  for  the  fulfilment  of  that 

1  Brief  in  Rhode  Island  v .  Palmer,  pp.  13  to  29. 

2  Mr.  Hughes  refers  to  Farrand,  The  Records  of  the  Federal  Convention, 
vol.  i.,  pp.  22,  121-122,  202,  203,  231?  vol.  ii,  pp.  84, 159,  174,  i88,  467, 
468,  557-559,  602,  623-631;  vol.  iii,  p.  601;   Elliot's  Debates,  vol.  iii, 
pp.  636  and  637;  vol.  iv,  pp.  176-178;  the  Federalist,  No.  43. 

3  See  Mr.  Hughes'  brief  in  Rhode  Island  v .  Palmer,  pp.  13  to  34,  and  his 
brief  in  Kentucky  D.  &  W.  Co.  v.  Gregory,  pp.  51  and  52, 

4  Texas  v.  White  (1868)  7  Wallace  700,  725. 


§  22      AMENDING  THE  CONSTITUTION         47 

purpose,  and  that  any  attempt  to  change  the  fundamental 
basis  of  the  Union  is  beyond  the  power  delegated  by  the 
Fifth  Article.  The  conclusion  from  this  argument  is  that 
the  delegated  power  to  amend  does  not  extend  to  any 
provision  of  a  class  that  could  lead  to  the  destruction  of 
either  the  United  States  or  the  individual  States.  A  general 
police  power  inheres  in  the  States  for  the  protection  of  the 
health,  safety,  morals,  and  general  welfare  of  their  inhabi- 
tants. Clearly  prohibition  is  a  subject  which  falls  under  the 
police  power,  and,  without  the  Eighteenth  Amendment,  it 
is  a  subject  upon  which  the  States  alone  could  legislate, 
except  in  connection  with  interstate  commerce,  or  under  the 
war  power.  The  argument  against  the  Eighteenth  Amend- 
ment is  that  it  transfers  part  of  the  police  power  from  the 
States  to  the  federal  government ;  that  if  part  of  the  police 
power  can  be  so  transferred  the  rest  of  it  and  other  fun- 
damental state  powers  may  be  similarly  transferred;  and 
that  if  this  can  be  done  the  States  can  be  substantially 
destroyed  by  constitutional  amendment.1  It  is  also  con- 
tended that  the  first  ten  amendments  were  intended  as  a 
bill  of  rights  which  should  even  be  a  restriction  upon  the 
power  to  amend,  and  that  since  the  Ninth  and  Tenth 
Amendments  provide  that,  "The  enumeration  in  the 
Constitution  of  certain  rights  shall  not  be  construed  to  deny 
or  disparage  others  retained  by  the  people,"  and  that, 
"The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved 
to  the  States  respectively  or  to  the  people,"  the  Constitu- 
tion cannot  be  amended  so  as  to  take  powers  from  the 
States.  The  answer  which  is  made  to  these  contentions  is 
that  the  framers  of  the  Constitution  did  not  intend  to  make 
an  unalterable  framework  of  government,  in  which  only 
the  details  could  be  developed  and  changed  by  amendment, 
but  that  they  meant  to  leave  a  way  for  any  changes  that 
might  be  deemed  necessary  in  the  future.  In  fact  we  find 
that  in  the  Constitutional  Convention — 

1  See  J.  D.  White,  "Is  There  an  Eighteenth  Amendment?"  5  Cor.  L. 
Quar.,  113. 


48         THE  AMERICAN  CONSTITUTION       §  23 

"Mr.  Sherman  expressed  his  fears  that  three  fourths  of 
the  States  might  be  brought  to  do  things  fatal  to  particu- 
lar States,  as  abolishing  them  altogether  or  depriving 
them  of  their  equality  in  the  Senate.  .  .  .  Mr.  Sherman 
moved  according  to  his  idea  above  expressed  to  annex 
to  the  end  of  the  article  a  further  proviso  '  that  no  State 
shall  without  its  consent  be  affected  in  its  internal  police, 
or  deprived  of  its  equal  suffrage  in  the  Senate.' " 

This  motion  was  lost,  and  then  the  proviso  with  regard  to 
representation  in  the  Senate  was  adopted. z  The  argument 
that  the  Ninth  and  Tenth  Amendments  are  limitations 
upon  the  amending  power  seems  clearly  untenable.  Those 
provisions  simply  became  part  of  the  Constitution  like  all  of 
its  original  articles,  and  like  them  subject  to  amendment.2 
Certainly  we  have  in  the  Fourteenth  Amendment  a  very 
striking  example  of  limitations  put  upon  the  police  power  of 
the  States  by  constitutional  amendment.  Unfortunately 
the  Supreme  Court's  decision  in  the  National  Prohibition 
Cases3  was  not  accompanied  by  any  opinion,  but  it  is  clear, 
nevertheless,  that  it  found  all  of  the  contentions  against  the 
nature  of  the  amendment  invalid  since  it  declared  in  its 
fourth  conclusion  that, 

"The  prohibition  of  the  manufacture,  sale,  transporta- 
tion, importation  and  exportation  of  intoxicating  liquors 
for  beverage  purposes,  as  embodied  in  the  Eighteenth 
Amendment,  is  within  the  power  to  amend  reserved  by 
Article  V  of  the  Constitution."4 

§23.  The  Exercise  of  the  Amending  Power.  The  result 
of  the  National  Prohibition  Cases5  seems  to  be  that  there  is 

1  Farrand,  The  Records  of  the  Federal  Convention,  vol.ii,  pp.629  and  630. 

a  See  Mr.  Hughes'  brief  in  Rhode  Island  v.  Palmer,  particularly  pages 
34  to  41. 

3  (1920)  253  U.  8.350. 

«  Ibid.,  386.  For  a  careful  analysis  of  the  arguments  for  and  against 
the  Eighteenth  Amendment  see  W.  F.  Dodd,  "Amending  the  Federal 
Constitution,"  jo  Yale  L.  Jour.,  321. 

s  (1920)  253  U.  S.  350. 


§  23      AMENDING  THE  CONSTITUTION         49 

no  limit  to  the  power  to  amend  the  Constitution,  except 
that  a  State  may  not  without  its  consent  be  deprived  of  its 
equal  suffrage  in  the  Senate.  To  put  the  case  most  ex- 
tremely, this  means  that  by  action  of  two  thirds  of  both 
Houses  of  Congress  and  of  the  legislatures  in  three  fourths 
of  the  States  all  of  the  powers  of  the  national  government 
could  be  surrendered  to  the  States,  or  all  of  the  reserved 
powers  of  the  States  could  be  transferred  to  the  federal 
government.  It  is  only  public  opinion  acting  upon  these 
agencies  which  places  any  check  upon  the  amending  power. 
But  the  alternative  to  this  result  would  be  to  recognize  the 
power  of  the  Supreme  Court  to  veto  the  will  of  the  people 
expressed  in  a  constitutional  amendment  without  any 
possibility  of  the  reversal  of  the  court's  action  except 
through  revolution.  Such  a  situation  was  clearly  to  be 
avoided  unless  necessitated  by  express  constitutional  man- 
date. Certainly,  if  a  federal  statute  is  to  be  held  constitu- 
tional unless  clearly  in  conflict  with  the  fundamental  law, 
an  equally  liberal  rule  should  prevail  with  regard  to  con- 
stitutional amendments. 

It  is  submitted,  however,  that  the  form  of  the  Eighteenth 
Amendment  is  unfortunate.  The  objections  leveled  against 
it  on  the  ground  that  it  is  legislative  in  character,  though 
not  proving  its  unconstitutionality,  would  seem  to  con- 
stitute a  very  valid  criticism  of  the  wisdom  of  Congress  in 
submitting  it  in  that  form.  A  Constitution  is  essentially  a 
framework  of  government,  embodying  grants  of  govern- 
mental powers,  and  restrictions  upon  such  powers.  The 
exercise  of  such  powers,  in  the  form  of  legislation  operating 
directly  upon  personal  and  property  rights,  is  normally  left 
to  the  legislature,  which  is  reasonably  responsive  to  public 
opinion,  and  which  may  act  only  within  constitutional 
limits.  Such  legislation  as  that  embodied  in  the  Eighteenth 
Amendment  is  enacted  without  any  constitutional  limita- 
tions, and  having  once  been  enacted  as  the  result  of  a  wave 
of  popular  opinion,  cannot  be  repealed  if  popular  opinion 
should  change,  as  long  as  a  fraction  over  one  third  of  either 
House  of  Congress  or  a  fraction  over  one  quarter  of  the 


50         THE  AMERICAN  CONSTITUTION       §  23 

States  hold  out  against  repeal.  It  is  believed  that  in  such  a 
situation  as  resulted  from  the  prohibition  agitation  it  would 
be  far  better  public  policy  to  adopt  a  constitutional  amend- 
ment giving  Congress  power  to  legislate  on  the  subject  in 
question,  by  force  of  which  amendment  Congress  could 
legislate  from  time  to  time  in  conformity  with  contemporary 
public  opinion. 


PART  II 

THE  NATIONAL  GOVERNMENT 


CHAPTER   IV 

THE   PRESIDENT 

§24.  Term  and  Qualifications  of  President  and  Vice- 
President.  The  Constitution  provides  that  the  President 
"shall  hold  his  office  during  the  term  of  four  years,"  and 
that  the  Vice- President  shall  be  "chosen  for  the  same 
term."1  There  was  much  discussion  in  the  Constitutional 
Convention  as  to  whether  the  President  should  be  eligible  to 
reelection,  and  as  to  what  the  length  of  his  term  should  be. 2 
During  the  early  part  of  the  discussion  the  view  of  the 
majority  seemed  to  be  that  he  should  be  elected  for  seven 
years  and  that  reelection  should  be  forbidden,  but  this 
proposition  was  gradually  abandoned  for  that  which  was 
finally  incorporated  into  the  Constitution.  There  is,  how-*) 
ever,  a  very  well-established  tradition  against  a  President's  S 
holding  office  for  more  than  two  terms.  Washington  laid 
its  foundation  by  refusing  to  consider  a  third  nomination, 
and  Jefferson  strengthened  it  by  taking  the  same  course, 
and  by  expressing  himself  very  strongly  against  a  longer 
tenure  of  office  than  eight  years.  A  strong  effort  was  made 
to  nominate  Grant  for  a  third  term  but  without  success. 
Roosevelt  having  been  elected  Vice-President  came  to  the 
presidency  through  the  death  of  McKinley,  and  was  then 
reelected.  After  being  out  of  office  a  term  he  was  again 
nominated,  but  was  not  elected. 

With  regard  to  eligibility  the  Constitution  provides: 

1  Art.  II,  sec.  I,  par.  i. 

*  See  Farrand,  The  Records  of  the  Federal  Convention,  vol.  i,  pp.  63, 
78,  88,  230,  292;  vol.  ii,  pp.  23,  33,  50,  52,  58,  102,  107,  1 12,  116,  132, 
134,  148,  171,  185,  493,  497,  572,  597,  657. 

53 


54         THE  AMERICAN  CONSTITUTION       §  24 

"No  person  except  a  natural-born  citizen,  or  a  citizen 
of  the  United  States  at  the  tiirie  of  the  adoption  of  this 
Constitution,  shall  be  eligible  to  the  office  of  President; 
neither  shall  any  person  be  eligible  to  that  office  who  shall 
not  have  attained  to.  the  age  of  thirty-five  years  and 
been  fourteen  years  a  resident  within  the  United  States."1 

By  reasonable  implication  the  qualifications  of  the  Vice- 
President  are  the  same;  certainly  he  could  not  succeed  to 
the  presidency  without  such  qualifications.  By  the  Twelfth 
Amendment  any  doubt  on  this  point  was  set  at  rest  by  the 
provision  that  "no  person  constitutionally  ineligible  to  the 
office  of  President  shall  be  eligible  to  that  of  Vice- President 
of  the  United  States. ' '  It  seems  clear  that  the  fourteen  years 
of  residence  within  the  United  States  which  are  required  of 
a  candidate  for  the  presidency  need  not  be  the  fourteen  years 
last  preceding  his  nomination  or  election,  but  that  any 
fourteen  years  of  residence  will  be  sufficient. 2 

1  Art.  II,  sec.  i,  par.  5. 

2  On  July  24,  1787,  a  committee  of  five  was  elected  by  the  Constitu- 
tional Convention  "to  report  a  constitution  conformable  to  the  resolu- 
tions passed  by  the  Convention."    On  August  2Oth  it  was  moved,  "that 
the  committee  be  instructed  to  report  proper  qualifications  for  the 
President."    On  August  22d  the  committee  reported  a  proposal  that  the 
qualifications  be  that  "he  shall  be  of  the  age  of  thirty-five  years,  and  a 
citizen  of  the  United  States,  and  shall  have  been  an  inhabitant  thereof 
for  twenty-one  years."    This  provision  was  not  debated,  and  on  August 
3ist  this  and  other  proposals  which  had  not  been  acted  upon  were  re- 
ferred to  a  committee  of  eleven,  one  member  from  each  State.     On 
September  4th  this  committee  submitted  the  following  provision:  "No 
person  except  a  natural-born  citizen,  or  a  citizen  of  the  United  States 
at  the  time  of  the  adoption  of  this  Constitution,  shall  be  eligible  to  the 
office  of  President;  nor  shall  any  person  be  elected  to  that  office  who 
shall  be  under  the  age  of  thirty-five  years,  and  who  has  not  been,  in  the 
whole,  at  least  fourteen  years  a  resident  within  the  United  States."    On 
September  7th  these  provisions  were  agreed  to  without  debate  or  dis- 
sent.     On  September  8th,  "A  committee  was  appointed  by  ballot 
to  revise  the  style  of,  and  arrange,  the  articles  which  had  been  agreed 
to."      This   committee  reported   the   Constitution  substantially  as 
it  was  finally  adopted.    A  residence  qualification  for  eligibility  to  the 
office  of  President  was  first  suggested  when  the  only  other  qualifications 
proposed  were  as  to  age  and  citizenship.    It  was  reasonable  to  provide 


§  25  THE  PRESIDENT  55 

§25.  Election  of  President  and  Vice-President.  The 
framers  of  the  Constitution  had  no  great  faith  in  the  choice 
of  the  people  as  a  whole,  and  therefore  devised  a  scheme  for 
the  election  of  the  President  and  Vice-President  by  an 
electoral  college.  The  provision  for  the  choice  of  this  elec- 
toral college  is  as  follows1: 

' '  Each  State  shall  appoint,  in  such  manner  as  the  Legis- 
lature thereof  may  direct,  a  number  of  electors,  equal  to 

against  the  possibility  of  a  person  being  elected  to  the  high  office  of 
President  who  had  but  recently  become  a  citizen  and  a  resident,  and 
who  would,  therefore,  not  be  familiar  with  our  institutions  and  tradi- 
tions. The  committee  of  eleven  radically  modified  the  original  proposal 
of  the  committee  of  five  by  requiring  that  a  person  to  be  eligible  to  the 
office  of  President  shall  be  "a  native-born  citizen,  or  a  citizen  of  the 
United  States  at  the  time  of  the  adoption  of  this  Constitution."  If 
these  provisions  had  stood  alone,  it  would  still  have  been  possible  for  a 
person  who  had  become  a  citizen  of  one  of  the  States  just  prior  to  the 
adoption  of  the  Constitution  to  have  been  elected  at  any  time  there- 
after to  the  presidency.  It  would  also  have  been  possible  for  one  who 
was  a  native-born  citizen,  but  who  had  lived  practically  all  his  life  out- 
side of  the  United  States,  to  become  a  candidate  for  the  presidency.  To 
meet  these  possibilities  it  was  further  proposed  by  the  committee  of 
eleven  that  a  person  shall  not  be  elected  "who  has  not  been,  in  the  whole, 
at  least  fourteen  years  a  resident  within  the  United  States.."  This  was 
agreed  to  by  the  convention  without  alteration,  discussion,  or  dissent. 
The  committee  which  put  the  Constitution  into  final  form  was  not 
authorized  to  make  any  changes  in  the  substance  of  the  provisions  which 
had  been  adopted,  but  only  "to  revise  the  style  of,  and  arrange,  the 
articles  which  have  been  agreed  to. "  The  conclusion  would  seem,  there- 
fore, to  be  obvious.  There  is  nothing  in  the  wording  of  the  Constitution 
which  requires  that  a  president  shall  have  been  a  resident  within  the 
United  States  for  the  fourteen  years  next  preceding  his  election.  The 
Constitution  simply  requires  that  he  shall  have  been  "fourteen  years  a 
resident  within  the  United  States."  Clearly  any  fourteen  years  of  his 
life  will  satisfy  the  requirement.  This  conclusion  is  made  doubly  clear 
when  we  find  that  the  committee  on  style  used  the  words  which  we  now 
find  in  the  Constitution  as  synonymous  with  the  provision  proposed  by 
the  committee  of  eleven,  and  adopted  by  the  Convention,  that  the 
President  must  have  been  "in  the  whole,  at  least  fourteen  years  a  resi- 
dent within  the  United  States."  See  Elliot's  Debates,  vol.  v,  pp.  363, 
447 ,  462,  03,  507,  521,  530,  and  562. 
1  Art.  II,  sec.  i,par.  2. 


56         THE  AMERICAN  CONSTITUTION       §  25 

the  whole  number  of  Senators  and  Representatives  to 
which  the  State  may  be  entitled  in  the  Congress;  but  no 
Senator  or  Representative  or  person  holding  an  office  of 
trust  or  profit  under  the  United  States  shall  be  appointed 
an  elector." 

This  clearly  gives  the  State  Legislatures  the  power  to  ap- 
point the  electors  themselves,  and  this  practice  continued 
in  some  States  until  quite  recently ;  but  they  may  also  pro- 
vide for  the  popular  election  of  presidential  electors,  and 
such  provision  has  now  been  made  in  all  States.  The  word 
"appoint"  in  this  connection  is  given  a  liberal  construction, 
and  has  been  held  to  even  justify  a  provision  for  the  election 
of  presidential  electors  by  districts  instead  of  on  a  general 
ticket. x  The  presidential  electors  are  state  and  not  federal 
officers. 3 
The  original  provisions  of  the  Constitution3  directed  each 

1  McPherson  v.  Blacker  (1892)  146  U.  S.  i. 

a  In  re  Green  (1890)  134  U.  S.  377. 

3  "  The  electors  shall  meet  in  their  respective  States  and  vote  by  ballot 
for  two  persons,  of  whom  one  at  least  shall  not  be  an  inhabitant  of  the 
same  State  with  themselves.  And  they  shall  make  a  list  of  all  the  per- 
sons voted  for,  and  of  the  number  of  votes  for  each,  which  list  they  shall 
sign  and  certify  and  transmit,  sealed,  to  the  seat  of  the  Government  of 
the  United  States,  directed  to  the  President  of  the  Senate.  The  Presi- 
dent of  the  Senate  shall,  in  the  presence  of  the  Senate  and  House  of 
Representatives,  open  all  the  certificates,  and  the  votes  shall  then  be 
counted.  The  person  having  the  greatest  number  of  votes  shall  be  the 
President,  if  such  number  be  a  majority  of  the  whole  number  of  electors 
appointed,  and  if  there  be  more  than  one  who  have  such  majority,  and 
have  an  equal  number  of  votes,  then  the  House  of  Representatives  shall 
immediately  choose  by  ballot  one  of  them  for  President ;  and  if  no  person 
have  a  majority,  then  from  the  five  highest  on  the  list  the  said  House 
shall  in  like  manner  choose  the  President.  But  in  choosing  the  Presi- 
dent, the  vote  shall  be  taken  by  States,  the  representation  from  each 
State  having  one  vote.  A  quorum,  for  this  purpose,  shall  consist  of  a 
member  or  members  from  two  thirds  of  the  States,  and  a  majority  of  all 
the  States  shall  be  necessary  to  a  choice.  In  every  case,  after  the  choice 
of  the  President,  the  person  having  the  greatest  number  of  votes  of  the 
electors  shall  be  the  Vice-President.  But  if  there  should  remain  two 
or  more  who  have  equal  votes,  the  Senate  shall  choose  from  them  by 
ballot  the  Vice-President."  Art.  II,  sec.  I,  par.  3. 


§  25  THE  PRESIDENT  57 

elector  to  vote  for  two  persons,  and  declared  that  the  per- 
son receiving  the  highest  number  of  votes  should  be  Presi- 
dent and  the  one  receiving  the  next  highest  number  of  votes 
should  be  Vice- President.  It  was  further  provided  that  if 
two  persons  having  each  a  majority  of  votes  should  be  tied, 
the  tie  should  be  resolved  by  the  House  of  Representatives, 
and  that  if  no  person  should  have  a  majority  the  House 
should  choose  a  President  from  the,  five  having  the  largest 
number  of  votes ;  and  that  after  the  election  of  a  President, 
the  person  having  the  next  highest  number  of  votes  should 
be  Vice-President.  It  was  early  found  that  this  arrange- 
ment was  unsatisfactory,  for  a  person  might  be  elected 
Vice-President  without  receiving  a  majority  of  votes,  as  was 
true  of  John  Adams  in  1796,  and  persons  of  different  parties 
might  be  President  and  Vice-President  as  in  the  case  of 
Jefferson  and  Burr  in  1800.  To  meet  this  situation  the 
Twelfth  Amendment  was  proposed  in  1803  and  was  ratified 
by  the  requisite  number  of  States  in  1804.  Its  terms  are 
as  follows: 

"The  electors  shall  meet  in  their  respective  States,  and 
vote  by  ballot  for  President  and  Vice-President,  one  of 
whom  at  least  shall  riot  be  an  inhabitant  of  the  same  State 
with  themselves;  they  shall  name  in  their  ballots  the 
person  voted  for  as  President,  and  in  distinct  ballots  the 
person  voted  for  as  Vice-President;  and  they  shall  make 
distinct  lists  of  all  persons  voted  for  as  President,  and  of 
all  persons  voted  for  as  Vice-President,  and  of  the  num- 
ber of  votes  for  each,  which  list  they  shall  sign  and  certify, 
and  transmit,  sealed,  to  the  seat  of  the  Government  of  the 
United  States,  directed  to  the  President  of  the  Senate; 
the  President  of  the  Senate  shall,  in  the  presence  of  the 
Senate  and  House  of  Representatives,  open  all  the  cer- 
tificates and  the  votes  shall  then  be  counted ;  the  person 
having  the  greatest  number  of  votes  for  President  shall 
be  the  President,  if  such  number  be  a  majority  of  the 
whole  number  of  electors  appointed;  and  if  no  person  have 
such  majority,  then  from  the  persons  having  the  highest 


58         THE  AMERICAN  CONSTITUTION       §  25 

numbers,  not  exceeding  three,  on  the  list  of  those  voted 
for  as  President,  the  House  of  Representatives  shall 
choose  immediately,  by  ballot,  the  President.  But  in 
choosing  the  President,  the  votes  shall  be  taken  by  States, 
the  representation  from  each  State  having  one  vote;  a 
quorum  for  this  purpose  shall  consist  of  a  member  or 
members  from  two  thirds  of  the  States,  and  a  majority  of 
all_the  States  shall  be  necessary  to  a  choice.  And  if  the 
House  of  Representatives  shall  not  choose  a  President, 
whenever  the  right  of  choice  shall  devolve  upon  them, 
before  the  fourth  day  of  March  next  following,  the 
Vice-President  shall  act  as  President,  as  in  the  case  of  the 
death  or  other  constitutional  disability  of  the  President. 
The  person  having  the  greatest  number  of  votes  as  Vice- 
President  shall  be  the  Vice-President,  if  such  number  be  a 
majority  of  the  whole  number  of  electors  appointed,  and 
if  no  person  have  a  majority,  then  from  the  two  highest 
numbers  on  the  list  the  Senate  shall  choose  the  Vice- 
President  ;  a  quorum  for  the  purpose  shall  consist  of  two 
thirds  of  the  whole  number  of  Senators,  and  a  majority 
of  the  whole  number  shall  be  necessary  to  a  choice.  But 
no  person  constitutionally  ineligible  to  the  office  of 
President  shall  be  eligible  to  that  of  Vice-President  of  the 
United  States." 

The  Constitution  also  provides  that  "Congress  may  deter- 
mine the  time  of  choosing  the  electors  and  the  day  on  which 
they  shall  give  their  votes,  which  day  shall  be  the  same 
throughout  the  United  States."1 

By  federal  statute  it  is  ordered  that  presidential  electors 
shall  be  appointed  in  each  State  on  the  Tuesday  next  after 
the  first  Monday  in  November  in  every  fourth  year,  and 
that  the  electors  of  each  State  shall  meet  and  vote  on  the 
second  Monday  in  January  at  a  place  to  be  designated  by 
the  State  Legislature.2  Provision  is  made  for  the  filling  of 
vacancies  among  the  electors  according  to  rules  to  be 

1  Art.  II,  sec.  I,  par.  4. 

a  U.  S.  Rev.  Stat.,  sec.  131,  and  Act  of  Feb.  3, 1887,  ch.  90,  sec.  i. 


§  26  THE  PRESIDENT  59 

adopted  by  each  State,  and  for  the  transmission  to  the 
President  of  the  Senate  of  the  certificates  of  electoral  votes.1 
The  present  law  authorizes  the  States  to  determine  contro- 
versies as  to  the  appointment  of  electors,  and  provides  that 
the  votes  shall  be  counted  in  the  presence  of  both  Houses 
of  Congress  by  four  tellers,  two  chosen  by  each  House.2 
Votes  may  be  rejected  by  concurrent  action  of  both  Houses 
of  Congress  on  the  ground  that  they  have  not  been  regularly 
given  by  electors  whose  appointment  has  been  properly 
certified,  and  when  two  or  more  returns  have  been  made 
from  the  same  State  the  Houses  shall  by  concurrent  action 
determine  which  is  the  official  return.3 

§26.  When  the  Office  of  President  Becomes  Vacant.  The 
provisions  in  the  Constitution  on  this  point  are  as  follows4 : 

"  In  case  of  the  removal  of  the  President  from  office,  or 
of  his  death,  resignation ,  or  inability  to  discharge  the  powers 
and  duties  of  the  said  office,  the  same  shall  devolve  on  the 
Vice-President,  and  the  Congress  may  by  law  provide  for 
the  case  of  removal,  death,  resignation,  or  inability,  both 
of  the  President  and  Vice-President,  declaring  what  officer 
shall  then  act  as  President,  and  such  officer  shall  act 
accordingly  until  the  disability  be  removed  or  a  President 
shall  be  elected." 

It  is  not  entirely  clear  whether  in  the  contingencies  above 
referred  to  with  regard  to  the  death,  etc.,  of  the  President  the 
Vice-President  was  intended  to  become  President  or  only  to 
perform  the  duties  of  that  office.  In  each  case,  however, 
when  a  President  has  died  the  Vice-President  has  at  once 
assumed  the  office.  This  would  probably  also  be  done  in 
case  of  the  President's  removal  by  impeachment,5  or  in  case 

1  U.  S.  Rev.  Stat.,  sees.  133,  and  138  to  145. 

a  Act  of  Feb.  3,  1887,  ch.  90,  sees.  2  to  4. 

a  Act  of  Feb.  3,  1887,  ch.  90,  sec.  4.  For  criticisms  which  have  been 
advanced  of  these  provisions  see  Willoughby  on  the  Constitution,  sees. 
66 1  to  663. 

<  Art.  II,  sec.  i.par.  6. 

s  See  sec.  40. 


60         THE  AMERICAN  CONSTITUTION       §  26 

of  his  resignation.1  But  in  case  of  the  President's  inability 
to  discharge  the  powers  and  duties  of  his  office,  is  the  Vice- 
President  to  assume  the  office  of  President,  and,  if  so,  what 
would  happen  upon  the  removal  of  the  President's  inability? 
No  Vice-President  has  sought  to  assume  the  office  or  the 
powers  and  duties  of  President  on  the  ground  of  the  Presi- 
dent's disability,  but  the  question  was  much  discussed  dur- 
ing the  illness  of  President  Wilson  at  the  end  of  his  second 
term.  It  is  also  left  in  doubt  as  to  who  is  to  determine  the 
inability  of  the  President.2 

In  pursuance  of  the  authority  given  to  it  by  the  con- 
stitutional provision  quoted  above  Congress  by  act  of  March 
I,  1792,  declared  that  in  case  of  the  death,  removal,  resig- 
nation, or  inability  of  both  the  President  and  Vice-President 
"the  President  of  the  Senate  pro  tempore,  and  in  case  there 
shall  be  no  President  of  the  Senate,  then  the  Speaker  of  the 
House  of  Representatives  for  the  time  being  shall  act  as 
President  of  the  United  States  until  the  disability  be  re- 
moved or  a  President  shall  be  elected."  The  same  statute 
also  provided  for  the  election  of  a  President  and  Vice- 
President  for  a  full  term  of  four  years  before  the  expiration 
of  the  term  of  the  previous  incumbents. 3  If  these  provisions 
had  ever  been  acted  upon  they  might  have  resulted  in  the 
assumption  of  the  functions  of  the  presidential  office  by  a 
person  of  a  different  party  from  that  of  the  President  who 

1  U.  S.  Rev.  Stat.,  sec.  151,  provides  that  "the  only  evidence  of  a 
refusal  to  accept,  or  of  a  resignation  of  the  office  of  President  or  Vice- 
President  shall  be  an  instrument  in  writing,  declaring  the  same,  and 
subscribed  by  the  person  refusing  to  accept  or  resigning,  as  the  case  may 
be,  and  delivered  into  the  office  of  the  Secretary  of  State." 

3 See  U.  A.  Lavery,  "Presidential  [Inability,"  8  Amer.  Bar  Assoc. 
Jour.,  13. 

3  It  was  moved  in  the  Constitutional  Convention  that  upon  the  death, 
etc.,  of  the  President  and  Vice-President  the  officer  designated  by  law 
should  act  "  until  the  time  for  electing  a  President  shall  arrive, "  but  this, 
upon  motion  of  Madison,  was  changed  to  read  as  we  now  find  it  in  the 
Constitution,  seeming  to  indicate  that  it  was  the  intention  of  the  framers 
of  the  Constitution  that  a  presidential  election  could  be  held  before  the 
expiration  of  the  term  of  the  previously  elected  incumbent.  Farrand, 
The  Records  of  the  Federal  Convention,  vol.  ii,  p.  535. 


§  27  THE  PRESIDENT  61 

had  been  elected  to  office.  They  might  also  have  resulted  in 
presidential  elections  coming  at  a  time  different  from  the 
election  of  senators  and  representatives.  This  statute  was 
repealed  in  1886,  and  succession  to  the  functions  of  Presi- 
dent by  members  of  the  cabinet  was  provided  for  in  the 
following  order :  Secretary  of  State,  Secretary  of  the  Treas- 
ury, Secretary  of  War,  Attorney-General,  Postmaster- 
General,  Secretary  of  the  Navy,  and  Secretary  of  the  Inte-  ^ 
rior,  provided  that  the  officer  designated  has  been  appointed 
by  the  advice  and  consent  of  the  Senate,  fulfills  the  eligibility 
requirements  in  the  Constitution,  and  is  not  under  impeach- 
ment. A  member  of  the  cabinet  upon  whom  the  presiden- 
tial functions  devolve  is  directed  to  convene  Congress  if  it 
is  not  in  session,  and  it  is  declared  that  he  "shall  act  as 
President  until  the  disability  of  the  President  or  Vice- 
President  is  removed  or  a  President  shall  be  elected."1 
No  provision  is  made  for  a  presidential  election  before 
the  expiration  of  the  term  of  the  previously  elected  in- 
cumbent, but  the  way  is  left  open  for  Congress  when 
convened  to  provide  for  such  election.  It  would,  how- 
ever, seem  unfortunate  for  Congress  to  adopt  such  a 
course. 

§27.  Compensation  and  Oath  of  Office  of  President.  It 
is  provided  in  the  Constitution  that  "the  President  shall, 
at  stated  times,  receive  for  his  services  a  compensation 
which  shall  neither  be  increased  nor  diminished  during  the 
period  for  which  he  shall  have  been  elected,  and  he  shall  not 
receive  within  that  period  any  other  emolument  from  the 
United  States,  or  any  of  them."2  The  salary  of  the  Presi- 
dent is  now  $75,000,  and  provision  is  made  for  his  traveling 
expenses  not  exceeding  $25,000.  The  Vice-President  re- 
ceives a  salary  of  $12,000. 

Before  the  President  enters  upon  his  office  he  takes  the 
following  oath  or  affirmation:  "I  do  solemnly  swear  (or 
affirm)  that  I  will  faithfully  execute  the  office  of  President 
of  the  United  States,  and  will,  to  the  best  of  my  ability, 

1  Act  of  Jan.  19, 1886,  ch.  4,  24  Stat.  I. 
a  Art.  II,  sec.  i,  par.  7. 


62         THE  AMERICAN  CONSTITUTION       §  28 

preserve,  protect,  and  defend  the  Constitution  of  the  United 
States."1 

§28.  The  President  as  Commander-in-Chief.  "The 
President  shall  be  Commander-in-Chief  of  the  Army  and 
Navy  of  the  United  States,  and  of  the  militia  of  the  several 
States  when  called  into  the  actual  service  of  the  United 
States."2  As  Commander-in-Chief  the  President  has  en- 
tire power  to  direct  the  disposition  of  military  and  naval 
forces  and  to  provide  for  the  execution  of  military  cam- 
paigns. On  the  other  hand  Congress  is  vested  with  the 
power  to  raise  military  and  naval  forces,  to  provide  for 
their  discipline  and  equipment,  and  to  make  appropriations 
for  their  maintenance. 3  The  power  to  declare  war  is  in  Con- 
gress,4 but  treaties  of  peace  are  made  by  the  President  by 
and  with  the  advice  and  consent  of  the  Senate. s/  In  case  of 
the  occupation  of  hostile  foreign  territory,  or  of  hostile 
domestic  territory,  in  the  event  of  civil  war,  the  entire 
governmental  power  is  in  the  military  authorities,  and, 
therefore,  ultimately  in  the  President  as  Commander-in- 
Chief.6^  Upon  the  conclusion  of  peace  the  power  of  Con- 
gress over  conquered  territory  becomes  supreme,  but  the 
military  government  may  remain  in  control  until  Congress 
makes  other  provision. 7  In  such  case,  however,  its  powers 
are  limited  to  the  mere  necessities  of  the  situation,  and  it  has 

1  Const,  of  U.  S.,  art.  II,  sec.  I,  par.  8. 

a  Ibid.,  art.  II,  sec.  2,  par.  i.  With  regard  to  the  militia  see  sees.  97 
and  176. 

a  Ex  parte  Milligan-  (1866)  4  Wallace  2,  139.  As  to  punishment  of 
offenses  committed  by  those  in  military  service,  see  sec.  98. 

4  Const,  of  U.  S.,  art.  I,  sec.  8,  par.  u. 

s  Ibid.,  art.*  II,  sec.  2,  par.  2.  See  sec.  33.  The  Supreme  Court 
recognized  the  power  of  the  President  by  proclamation  to  declare  a 
state  of  war  to  exist,  and  later  to  declare  a  state  of  peace,  in  the  case  of 
our  Civil  War.  "  The  Prize  Cases  (1862)  2  Black  635;  The  Protector 
(1871)  12  Wallace  700.  But  see  Justice  Nelson's  dissent  in  the  former 
case,  and  the  criticism  in  Willoughby  on  the  Constitution,  sec.  714. 

6  New  Orleans  v.  Steamship  Co.  (1874)  2O  Wallace  387;  Dooley  v. 
United  States  (1901)  182  U.  S.  222. 

'Texas  v.  White  (1868)  7  Wallace  700;  Cross  v.  Harrison  (1853)  16 
Howard  164;  Santiago  v.  Nogueras  (1909)  214  U.  S.  260. 


§  29  THE  PRESIDENT  63 

no  general  authority  to  make  laws  for  the  territory  in 
question.1  The  fact  that  the  country  is  at,  war  will  not 
justify  the  military  authorities  in  arrogating  to  themselves 
the  powers  of  the  civil  authorities  in  friendly  domestic 
territory,  where  the  civil  government  is  duly  functioning. 
So  it  was  held  that  during  the  Civil  War  a  civilian  could  not 
be  tried  by  court  martial  in  loyal  territory  where  the  civil 
courts  were  functioning  normally.2 

§29.  The  President's  Power  of  Appointment  and  Removal. 
One  of  the  most  important  and  at  the  same  time  one  of  the 
most  arduous  tasks  which  is  put  upon  the  chief  executive 
results  from  the  provision  that 

"he  shall  nominate  and  by  and  with  the  advice  and 
consent  of  the  Senate  shall  appoint  ambassadors,  other 
public  ministers  and  consuls,  judges  of  the  Supreme 
Court,  and  all  other  officers  of  the  United  States  whose 
appointments  are  not  herein  otherwise  provided  for,  and 
which  shall  be  established  by  law;  but  the  Congress  may 
by  law  vest  the  appointment  of  such  inferior  officers  as 
they  think  proper  in  the  President  alone,  in  the  courts  of 
law,  or  in  the  heads  of  departments." 

In  the  next  paragraph  he  is  given  ' '  power  to  fill  up  all  vacan- 
cies that  may  happen  during  the  recess  of  the  Senate  by 
granting  commissions,  which  shall  expire  at  the  end  of  their 
next  session."3  Congress  has  not  the  power  to  make 
appointments  except  of  its  own  officers,4  nor  to  provide  for 
appointment  by  others  than  those  specified  above, s  but  the 
powers  and  duties  of  any  existing  officer  may  be  increased 
by  Congress.6  The  Constitution  does  not  define  the  term 
"inferior  officers"  as  used  in  the  provision  above  as  to  ap- 
pointments, but  Congress  has  never  attempted  to  exercise 

1  Dooley  v.  United  States  (1901)  182  U.  S.  222. 
a  Ex  parte  Milligan  (1866)  4  Wallace  2. 

3  Art.  II,  sec.  2,  pars.  2  and  3.      In  section  3  of  the  same  article  he  is 
directed  to  commission  all  officers  of  the  United  States. 
«  United  States  v.  Ferreira  (1851)  13  Howard  40,  51. 
s  Ekiu  v.  United  States  (1892)  142  U.  S.  651,  663. 
6  Shoemaker  v.  United  States  (1893)  147  U.  S.  282. 


64         THE  AMERICAN  CONSTITUTION       §  29 

the  power  given  to  it  as  to  them  except  with  regard  to  very 
subordinate  offices. 

The  Constitution  does  not  declare  how  federal  officers  are 
to  be  removed.  It  has  been  held  that  where  Congress  has 
vested  the  power  to  appoint  "inferior  officers"  in  the  heads 
of  departments  it  may  limit  the  power  of  removal. x  The 
question  whether  Congress  could  limit  the  power  of  the 
President  to  remove  officers  whom  he  has  appointed  alone 
or  with  the  Senate's  concurrence  was  ably  debated  in  the 
First  Congress,  which  finally  expressly  recognized  the 
President's  right  of  removal.2  iThe  President's  right  of 
removal  was  not  thereafter  interfered  with  by  Congress 
until  the  passage  of  the  tenure  of  office  acts  in  1 867  and  1 869 
which  did  attempt  to  limit  the  President's  power  in  that 
regard.  These  in  turn  were  repealed  in  1887,  and  since  then 
the  original  practice  has  been  resumed,  i  At  the  very  outset 
of  our  government  the  question  was  discussed  as  to  whether 
the  power  of  removal  vested  in  the  President  or  in  the  Presi- 
dent and  the  Senate.  Hamilton  in  the  Federalist,  speaking 
of  the  Senate,  expressed  the  opinion  that  "the  consent  of 
that  body  would  be  necessary  to  displace  as  well  as  to 
appoint."3  The  view  has  been  strongly  expressed  that  the 
reasonable  interpretation  of  the  Constitution  would  put  the 
power  in  the  President  and  the  Senate  with  regard  to  all 
officers  appointed  by  their  joint  action.4  However,  as  has 

1  United  States  v.  Perkins  (1886)  116  U.  S.  483. 

*  Sergeant's  Constitutional  Law,  413;  Story  on  the  Constitution  ($th  ed.), 
sec.  1542.  Story  points  out  that  this  action  was  taken  by  the  Senate  by 
the  casting  vote  of  the  Vice-President. 

a  The  Federalist,  No.  77.  He  goes  on  to  say:  "A  change  of  the  chief 
magistrate,  therefore,  would  not  occasion  so  violent  or  so  general  a 
revolution  in  the  officers  of  the  Government  as  might  be  expected,  if 
he  were  the  sole  disposer  of  offices.  Where  a  man,  in  any  station,  had 
given  satisfactory  evidence  of  his  fitness  for  it,  a  new  President  would  be 
restrained  from  attempting  a  change  in  favor  of  a  person  more  agree- 
able, by  the  apprehension  that  the  discountenance  of  the  Senate 
might  frustrate  the  attempt,  and  bring  some  degree  of  discredit  upon 
him." 

*  This  view  was  strongly  upheld  in  argument  in  the  first  Congress, 
though  the  majority  finally  took  the  opposite  view.    Sergeant's  Con- 


§  30  THE  PRESIDENT  65 

been  pointed  out,  the  President's  sole  authority  in  this  re- 
gard was  recognized  by  the  First  Congress,  and  this  view 
has  become  thoroughly  established.  But  is  this  power  exer- 
cised merely  by  the  acquiesence  of  Congress,  and  may  Con- 
gress put  limits  upon  it  ?  It  did  do  so  by  the  tenure  of  office 
acts,  and  its  right  to  do  so  has  been  strongly  supported  upon 
the  ground  that  the  power  of  removal  is  not  by  the  Constitu- 
tion vested  in  the  President,  but  can  only  be  implied  from 
the  fact  that  he  is  vested  with  general  executive  power,  or 
from  his  duty  to  see  that  the  laws  are  faithfully  executed, 
while  on  the  other  hand  Congress  is  expressly  authorized1 
to  make  laws  which  shall  be  necessary  and  proper  for  carry- 
ing into  execution  all  "powers  vested  by  this  Constitution 
in  the  government  of  the  United  States,  or  in  any  depart- 
ment or  officer  thereof."2  The  Supreme  Court  has  not 
passed  upon  the  validity  of  such  congressional  legislation.  3 
It  is  very  curious  that  this  most  potent  power  of  removal, 
which  is  exercised  by  the  President,  should  rest  upon  so 
unsubstantial  a  foundation,  and  that  the  right  of  Congress 
to  control  the  exercise  of  this  power  should  still  be  in 
doubt. 

§30.     The  President  and  His  Cabinet. 
sionjs  made  in  the  r,npfitit.nt.ir>Ti  for  fl.HniinistTa.tiw- 
ments  or  for  a  presideiitiaLcabir'^t,  hut  tViejDp.rflr.r.ityx>f  s 
de_pjTtments_is_clearlv  .  _contgmplate_d  where_itJs  provided 
thatjbhe  President  "mayjrequire  the.  opinion,  in 


the_£rincipal  offiggr  in  ragiwof  tbe  executive  departments 
upon  anyjmbject  relatingjto_the_duties  of  theirjcespective 

stitutional  Law  413;  Story  on  the  Constitution  (5th  ed.),  sec.  1542.  See 
United  States  v.  Avery  (1867)  Deady  204,  212,  for  the  views  expressed  by 
Clay,  Webster,  and  Calhoun.  For  the  arguments  in  favor  of  the  view 
which  has  been  adopted  see  i  Kent's  Comm.  309  and  310. 

1  Const,  of  U.  S.t  art.  I,  sec.  8,  par.  18. 

a  United  States  ».  Avery  (1867)  Deady  204,  quoting  Calhoun  's  argu- 
ment at  length.  See  also  I  Kent's  Comm.  311,  note  I,  Story  on  the 
Constitution  (5th  ed.),  sec.  1543,  note  a,  and  Justice  McLean's  dissent- 
ing opinion  in  United  States  v.  Guthrie  (1854)  17  Howard  284,  305. 

*  See  the  discussion  in  Fairlie,  "The  Administrative  Power  of  the 
President,"  2  Mich.  L.  Rev.,  191,  195  et  seq. 

5 


66         THE  AMERICAN  CONSTITUTION       §  30 

offices."1  It  is  left  to  Congress  to  create  executive  depart- 
ments and  to  define  their  functions.  The  heads  of  these 
departments  are,  however,  appointed  by  the  President  by 
and  with  the  advice  and  consent  of  the  Senate,  and  are  re- 
movable by  him  at  will. 2  They  are,  therefore,  always  of  his 
political  party,  and  normally  his  strong  supporters.  They 
have  come  to  be  known  as  the  President's  "cabinet,"  and 
it  has  become  a  thoroughly  established  practice,  dating  from 
Washington's  administration,  for  the  President  to  call  these 
officers  together  for  consultation  and  advice.  The  Presi- 
dent is  not  bound  by  their  advice,  though  they  undoubtedly 
play  an  important  part  in  determining  his  policies,  but  his 
power  to  control  the  administration  of  their  departments  has 
become  thoroughly  recognized. 3  The  President's  cabinet  is 
at  present  made  up  as  follows :  the  Secretary  of  State,  the 
Secretary  of  the  Treasury,  the  Secretary  of  War,  the  At- 
torney-General, the  Postmaster-General,  the  Secretary  of  the 
Navy,  the  Secretary  of  the  Interior,  the  Secretary  of  Agricul- 
ture, the  Secretary  of  Commerce,  and  the  Secretary  of  Labor. 

1  Art  II.,  sec.  2,  par.  I.     Peletiah  Webster  in  his  plan  for  a  federal 
government,  published  in  1783,  proposed  that  there  should  be  ministers 
of  finance,  war,  state  and  foreign  affairs,  who  with  three  others  to  be 
appointed  by  Congress  from  New  England,  the  Middle  States,  and  the 
Southern  States,  respectively,  should  form  an  executive  council,  one  of 
whose  members  should  be  appointed  President.     See  A  Memorial  in 
Behalf  of  the  Architect  of  Our  Federal  Constitution,  by  Hannis  Taylor, 
pp.  36  and  43.    In  the  Constitutional  Convention  it  was  proposed  that 
there  be  an  executive  council  instead  of  a  single  executive.    When  this 
idea  was  abandoned  it  was  proposed  that  the  Constitution  provide  for 
ministers  of  state  who  should  act  in  an  advisory  capacity.    It  was  finally 
decided  that  it  was  better  not  to  seem  to  weaken  the  President's  in- 
dividual responsibility  by  making  provision  in  the  Constitution  for 
advisors.      Farrand,  The  Records  of  the  Federal  Convention,  vol.  i,  pp. 
66,  70,  74;  vol.  ii,  pp.  329,  335,  342,  367,  543. 

2  See  the  preceding  section. 

s  It  probably  was  not  originally  intended  that  the  President  should 
be  the  directing  head  of  the  executive  departments  established  by 
Congress,  but  through  the  fact  that  the  heads  of  those  departments  are 
his  appointees  and  are  removable  by  him  his  control  of  their  administra- 
tion and  policies  has  become  secure.  Goodnow,  Comparative  Adminis- 
trative Law  (student's  ed.),  vol.  i,  pp.  62  to  70. 


§  31  THE  PRESIDENT  67 

§3 1 .  The  President  as  the  Chief  Executive.  The  Constitu- 
tion contains  the  following  general  provisions :  ' '  The  execu- 
tive power  shall  be  vested  in  a  President  of  the  United  States 
of  America,"  and  "he  shall  take  care  that  the  laws  be  faith- 
fully executed."1  The  only  other  express  provisions  with 
regard  to  powers  and  duties  which  are  devolved  upon  the 
President,  besides  those  already  considered,  have  to  do  with 
reprieves  and  pardons,  treaties,  giving  of  information  to 
Congress  with  regard  to  the  state  of  the  Union,  convening 
and  adjourning  Congress  upon  special  occasions,  and  receiv- 
ing ambassadors  and  ministers.  It  will  be  noticed  that 
these  powers  are  entirely  military  and  political,  except  for 
the  power  of  appointment  of  officers,  which  is  shared  by  the 
Senate.  It  was  probably  the  purpose  of  the  framers  of  the 
Constitution  that  the  President's  powers  should  be  essen- 
tially political  and  military,  as  enumerated  in  that  docu- 
ment, and  that  he  should  not  have  the  general  direction  of 
administrative  affairs,  but  that  the  officers  in  charge  of  such 
affairs  should  be  under  the  direction  of,  and  accountable 
to  Congress.  In  the  very  full  discussion  of  the  presidential 
office  in  the  Federalist  only  those  powers  and  duties  which 
are  expressly  enumerated  in  the  Constitution  are  con- 
sidered. 2  Although  Congress  in  organizing  the  departments 
of  foreign  affairs  and  of  war,  having  to  do  with  political 
and  military  affairs,  put  these  departments  under  the  direc- 
tion of  the  President,  when  it  came  to  the  formation  of  the 
treasury  department  and  the  post  office  department  it 
showed  a  clear  purpose  to  keep  their  administration  under 
its  own  direction.3  But,  as  has  been  pointed  out  in  the 
preceding  paragraph,  Congress  at  the  very  outset  conceded 
to  the  President  the  power  of  removing  administrative 
officers,  and  this,  together  with  his  function  of  nominating 
officers  for  appointment,  and  the  close  relations  with  heads 
of  the  administrative  departments  developed  through 

1  Art.  II,  sec.  i,  par.  i,  and  sec.  3. 
3  The  Federalist,  Nos.  67  to  77,  particularly  No.  69. 
3  See  the  discussion  of  this  point  in  Goodnow,  Principles  of  the  Ad- 
ministrative Law  of  the  United  States,  70  to  82. 


68         THE  AMERICAN  CONSTITUTION       §  32 

cabinet  conferences,  has  resulted  in  the  accretion  to  the 
presidential  office  of  the  power  of  general  direction  of  all  the 
vast  administrative  machinery.  Furthermore  Congress 
has  itself  by  express  direction  conferred  powers  and  im- 
posed administrative  duties  upon  the  President  in  a  very 
large  number  of  instances.1  At  the  present  day  the  Presi- 
dent's position  as  chief  administrative  officer  of  the  federal 
government  is  thoroughly  established.  Moreover,  the 
Supreme  Court  in  interpreting  his  functions  has  held  that, 
in  his  duty  to  see  that  the  laws  including  treaties  and  the 
Constitution  itself,  are  faithfully  executed,  he  is  not  limited 
to  their  enforcement  according  to  their  express  terms,  but 
may  direct  such  acts  to  be  done  as  reasonably  appear  to  be 
necessary  for  their  enforcement  in  the  absence  of  express 
direction^  In  the  case  before  the  court2  it  appeared  that  the 
President  had  directed  an  officer  of  the  department  of 
justice  to  protect  a  justice  of  the  Supreme  Court  against 
threatened  attack,  although  there  was  no  statutory  author- 
ization for  such  direction.  The  court  held  that  it  was  a 
reasonably  inferable  constitutional  duty  of  the  federal 
government  to  protect  its  officers,  and  that  the  President  in 
the  absence  of  statutory  provision  might  legally  give  direc- 
tion for  such  protection.  In  discussing  the  principle  which 
was  applied  in  the  case  the  court  said  that  it  had  no  doubt 
that  if  robbery  of  the  mail  was  threatened,  or  if  injury  to 
forests  on  the  public  domains  was  apprehended,  the  Presi- 
dent, without  any  statutory  authorization,  could  make  pro- 
vision for  their  protection.3 

§32.  Reprieves  and  Pardons.  By  the  Constitution  the 
power  is  given  to  the  President  "to  grant  reprieves  and 
pardons  for  offenses  against  the  United  States  except  in 
cases  of  impeachment."4  It  is  to  be  noted  that  it  is  only  in 
cases  of  offenses  against  the  United  States  that  the  Presi- 

1  Fairlie,  "The  Administrative  Powers  of  the  President,  "  2  Mich.  L. 
Rev.  190,  203. 
J*Inre  Neagle  (1890)  135  U.  S.  I. 

3  Ibid.  65. 

<  Art.  II,  sec.  2,  par.  i. 


§  32  THE  PRESIDENT  69 

dent  may  act  under  this  provision.  This  power  may  not  be 
limited  by  Congress.1  The  pardoning  power  may  be  exer- 
cised at  any  time  after  the  offense  has  been  committed, 
either  before  or  after  trial  or  conviction. 2  A  pardon  may  be 
absolute  or  may  take  the  form  of  the  remission  of  part  of  the 
penalty,  and  it  may  be  granted  upon  certain  conditions.3 
The  President  may  also  grant  general  amnesties  to  classes 
of  individuals.4  This  fact,  however,  is  held  not  to  exclude 
Congress  from  also  passing  acts  of  amnesty,  which  it  has  done 
in  providing  by  legislation  that  evidence  given  by  witnesses 
in  certain  proceedings  shall  not  in  any  way  be  used  against 
them.5  It  has  also  been  the  practice  of  Congress  from  the 
foundation  of  the  government  to  authorize  federal  officers 
to  remit  penalties  which  have  been  incurred.  The  Supreme 
Court  has  refused  to  declare  unjustified  the  long  continued 
interpretation  of  the  Constitution  under  which  these  con- 
gressional acts  have  been  assumed  to  be  valid.6  In  1916, 
in  the  case  of  Ex  parte  United  States,1  the  Supreme  Court 
decided  that  there  was  no  inherent  power  in  the  federal 
courts  to  suspend  sentences,  although  that  power  had  been 
exercised  by  those  courts  in  a  large  number  of  cases.  As  a 
result  of  this  decision  President  Wilson  granted  pardons  to" 
some  five  thousand  persons.  The  court  stated  that  for  the 
power  to  suspend  sentences  ' '  recourse  must  be  had  to  Con- 
gress whose  legislative  power  on  the  subject  is  in  the  very 
nature  of  things  adequately  complete."8  A  reprieve  oper- 

*Ex  parte  Garland  (1866)  4  Wallace  333;  United  States  v.  Klein 
(1871)  13  Wallace  128. 

3  Ex  parte  Garland  (1866)  4  Wallace  333,  380. 
*Ex  parte  Wells  (1855)  18  Howard  307. 

4  See  "The  Power  of  the  President  to  Grant  a  General  Pardon  or 
Amnesty  for  Offenses  Against  the  United  States,"  8  American  L.  Reg. 
512  and  577. 

s  Browne  Walter  (1896)  161  U.  S.  591,  601. 

6  United  States  v.  Morris  (1825)  10  Wheaton  246;  The  Laura  (1885} 
114  TJ.  S.  411. 

'242  U.  S.  27. 

8  Ibid.  52.  The  State  decisions  on  the  question  of  the  inherent  power 
of  courts  to  suspend  sentences  are  conflicting.  In  the  case  just  cited  the 
court  gives  a  full  collection  of  the  State  decisions  on  both  sides  of  the 


70         THE  AMERICAN  CONSTITUTION       §  33 

ates  in  cases  of  capital  punishment  to  defer  to  a  certain  day 
the  time  of  execution. 

§33-  The  President's  Treaty-Making  Power.  The  lan- 
guage of  the  Constitution  on  this  subject  is  that  the  Presi- 
dent "shall  have  power,  by  and  with  the  advice  and  consent 
of  the  Senate,  to  make  treaties,  provided  two  thirds  of  the 
Senators  present  concur."1  Under  the  Articles  of  Confed- 
eration2 Congress  possessed  the  sole  power  of  making 
treaties,  it  being  necessary  for  nine  States  to  concur.  In  the 
Constitutional  Convention  there  was  difference  of  opinion 
as  to  whether  the  treaty-making  power  should  be  vested  in 
the  President,  the  Senate,  Congress  as  a  whole,  or  in  the 
President  and  the  Senate,  but  the  latter  view  finally  pre- 
vailed. There  was  also  opinion  favorable  to  a  requirement 
that  two  thirds  of  the  whole  membership  of  the  Senate 
should  concur,  but  this  did  not  meet  with  the  approval  of 
the  majority  of  the  Convention.3  The  difficulty  which  has 
often  been  experienced  in  getting  treaties  approved  by  the 
Senate  after  they  have  been  negotiated  may  reasonably 
lead  to  the  belief  that  even  the  provision  which  was  adopted 
was  too  cautious,  and  that  a  provision  for  approval  by  a 
majority  of  the  Senate  would  have  been  more  reasonable 
and  workable.  There  has  been  some  variety  of  opinion  as  to 
what  is  meant  by  the  provision  that  treaties  shall  be  made 
by  the  President  "by  and  with  the  advice  and  consent  of  the 
Senate."  It  is  reasonably  inferable  that  the  drafters  of  the 
Constitution  did  intend  that  the  Senate  should  have  a  part 
in  advising  with  regard  to  the  negotiation  of  treaties,  and  it 
is  significant  that  President  Washington  did  repeatedly 
ask  the  Senate's  advice  in  negotiating  treaties.4  On  the 
whole,  however,  the  practice  has  been  otherwise,  and  most 

question.  It  has  been  held  that  the  grant  to  a  court  of  the  power  to 
suspend  sentences  is  not  an  infringement  upon  the  chief  Executive's 
pardoning  power.  People  v.  Court  of  Sessions  (1894)  141  N.  Y.  288. 

1  Art.  II,  sec.  2,  par.  2.    The  States  have  no  such  power.     See  sec.  171. 

>  Art.  IX. 

3  Story  on  the  Constitution  (sth  ed.),  sec.  1506. 

4  W.  H.  Dewhurst,  "Does  the  Constitution  Make  the  President  Sole 
Negotiator  of  Treaties?  "  30  Yale  L.  Jour.  478. 


§  34  THE  PRESIDENT  71 

treaties  have  been  presented  to  the  Senate  at  the  conclusion 
of  negotiations,  the  Senate  being  then  left  to  either  re- 
ject, or  to  consent  unconditionally  or  with  accompanying 
reservation  or  interpretations,  or  to  advise  as  to  such 
changes  as  that  body  may  think  desirable.  The  President 
mav_a/bjmy  time_  .with  draw  a  treaty  from  the._Senate's 
consideration.  If  changes  are  advised  the  President  may 
then  enter  into  further  negotiations  with  regard  to  them,  or 
may  refuse  to  ratify  the  treaty  with  such  changes.1 

§  34.  The  Scope  of  the  Treaty-Making  Power.2  That  the 
President  and  Senate  cannot  by  a  treaty  change  the  frame- 
work of  government  established  by  the  Constitution  seems 
obvious  since  the  Constitution  itself  provides  how  it  shall 
be  amended.  It  also  seems  clear  that  the  national  govern- 
ment cannot  do  by  means  of  a  treaty  what  it  is  expressly 
forbidden  in  the  Constitution  to  do  at  all.  Thus  it  would 
seem  that  it  could  not  by  treaty  abolish  the  writ  of  habeas 
corpus,  or  institute  bills  of  attainder,  or  levy  a  capitation 
tax  except  in  proportion  to  the  census,  or  tax  exports  from  a 
State,  or  give  a  preference  to  the  ports  of  one  State  over 
those  of  another,  or  provide  for  titles  of  nobility.3  Nor 
could  it  by  treaty  establish  a  state  church,  or  provide  for 
promiscuous  searches,  or  do  away  with  indictments  or  jury 
trials  in  criminal  cases,  or  do  any  of  the  other  things  for- 
bidden in  the  first  eight  amendments.4 

It  has  never  been  attempted  to  directly  appropriate  public 
funds  by  treaty,  but  when  treaties  have  called  for  the  pay- 

1  Story  on  the  Constitution  (5th  ed.),  sec.  1523.     Haver  v.  Yaker  (i86<))_. 
9  Wallace  32. 

3  For  a  fuller  treatment  of  this  subject  see  Crandall,  Treaties,  Their 
Making  and  Enforcement  (2d  ed.);  Butler,  Treaty- Making  Power  of  the 
United  States;  Tucker,  Limitations  on  the  Treaty-Making  Power;  Will- 
oughby  on  the  Constitution,  chaps.  24  and  25. 

3  Art.  I,  sec.  9. 

4 "It  would  not  be  contended  that  it  [the  treaty-making  power] 
extends  so  far  as  to  authorize  what  the  Constitution  forbids,  or  a  change 
in  the  character  of  the  government  or  in  that  of  one  of  the  States,  or  a 
cession  of  any  portion  of  the  territory  of  the  latter  without  its  consent." 
Geofrey  v.  Riggs  (1890)  133  U.  S.  258,  267. 


72         THE  AMERICAN  CONSTITUTION       §  34 

ment  of  sums  of  money,  as  in  the  cases  of  the  Jay  treaty, 
the  treaty  for  the  purchase  of  Louisiana,  and  the  treaty  for 
the  purchase  of  Alaska,  there  has  been  much  discussion  as 
to  whether  it  is  a  matter  of  duty  or  of  discretiori  on  the  part 
of  Congress  to  make  the  appropriation  called  for.  The 
House  of  Representatives  has  consistently  held  that  it  is  a 
matter  of  discretion1 ;  and  even  though  it  should  be  viewed 
as  a  matter  of  duty  there  is  no  constitutional  method  for  its 
enforcement.  The  same  situation  exists  when  a  treaty 
contains  any  other  obligation  which  is  not  self-executing 
but  which  calls  for  congressional  action. 

But  how  far  may  the  President  and  Senate  go  in  incorpor- 
ating into  a  treaty,  which  is  in  terms  self -executing,  provi- 
sions of  a  character  to  be  within  the  ordinary  field  of 
congressional  legislation,  such  as  provisions  with  regard  to 
interstate  commerce,  the  tariff,  immigration,  and  naturaliza- 
tion ?  It  is  provided  in  the  Constitution  that  ' '  all  bills  for 
raising  revenue  shall  originate  in  the  House  of  Representa- 
tives."2 It  has  been  insisted  by  the  House  of  Representa- 
tives that  this  excludes  all  tariff  provisions  from  the  treaty- 
making  powers,  and  that  when  treaties  contain  such  provi- 
sions congressional  action  is  necessary  to  put  them  into 
effect,  and  in  this  position  the  House  has  been  supported  by 
the  Senate.  It  is  now  the  practice  to  insert  in  treaties  mak- 
ing modifications  in  existing  tariffs  a  clause  making  such 
changes  dependent  upon  congressional  action.3 

Outside  at  least,  of  provisions  with  regard  to  appropria- 
tions  and  taxation  it  seems  clearjthat  treaties  may  contain 
'sHpulations  on  subjects  with  regard  to  which  Congress^  may 
legislate,  and  that,  when  such  stipulations  are  so  framed  as 
to  go  intcTeffect  without  congressional  action,  they  have  the 
full  force  of  law,  for  the  Constitution  expressly  provides  that 
treaties,  as  well  as  laws  passed  by  Congress,  "shall  be  the 
supreme  law  of  the  land."4  Furthermore,  it  necessarily 

1  Crandall,  Treaties,  Their  Making  and  Enforcement,  chap.  12. 
a  Art.  I,  sec.  7. 

3  Crandall,  Treaties,  Their  Making  and  Enforcement,  chap.  13. 

4  Art.  VI,  par.  2. 


§  34  THE  PRESIDENT  73 

follows  that,  since  congressional  statutes  and  treaties  stand 
upon  a  parity,  the  provisions  of  a  treaty  which  conflict  with 
the  provisions  of  a  previous  statute  supersede  the  statutory 
provisions.  "That  it  was  competent  for  the  two  countries 
by  treaty  to  have  superseded  a  prior  act  of  Congress  on  the 
same  subject  is  not  to  be  doubted;  for  otherwise  the  declara- 
tion in  the  Constitution  that  a  treaty,  concluded  in  the  mode 
provided  by  that  instrument,  shall  be  the  supreme  law  of  the 
land,  would  not  have  due  effect."1  But,  of  course,  if  a 
treaty  and  federal  statute  relate  to  the  same  subject,  the 
court  will,  if  possible,  give  effect  to  both.2  If  a  treaty  may 
supersede  a  federal  statute,  it  follows  conversely  that  a 
federal  statute  may  abrogate  the  provisions  of  a  treaty. 
This  has  been  repeatedly  determined  by  the  Supreme 
Court.3  The  result  of  such  action  is  to  replace  the  treaty 
provisions  by  the  statute  as  the  law  of  the  land,  but  the 
international  obligation  created  by  the  treaty  still  exists, 
and  its  nonfulfillment  may,  of  course,  lead  to  international 
complications . 

The  Articles  of  Confederation4  forbade  the  individual 
States  to  enter  into  any  treaty  without  the  consent  of  the 
United  States,  and  gave  to  Congress  "the  sole  and  exclusive 
right  and  power  of  ...  entering  into  treaties  and  alli- 
ances." Nevertheless,  the  treaty  of  peace  which  was  made 
by  Congress  with  Great  Britain  was  not  fully  observed  by 
the  States,  and  Congress  was  reduced  to  requesting  the 
States  to  repeal  their  legislation  which  was  inconsistent 
with  its  terms.  When  the  Constitution  was  adopted  it  was 
determined  to  meet  this  situation,  and  this  was  done  by 
declaring  that ' '  treaties  made,  or  which  shall  be  made,  under 

1  United  States  v.  Lee  Yen  Tai  (1902)  185  U.  S.  213,  220.  See  also 
Foster  v.  Neilson  (1829)  2  Peters  253,  314;  Cherokee  Tobacco  Case 
(1870)  ii  Wallace  616,  621;  Whitney  v.  Robertson  (1888)  124  U.  S. 
190,  194;  Johnson  v.  Browne  (1907)  205  U.  S.  309,  321. 

3  See  the  two  cases  last  above  cited. 

3  Head  Money  Cases  (1884)  112  U.S.  580;  Whitney  v.  Robertson 
(1888)  124  U.  S.  190;  Chinese  Exclusion  Cases  (1889)  130  U.  S.  581; 
Butler,  Treaty-Making  Power  of  the  United  States,  sec.  378. 

4  Articles  VI  and  IX. 


74         THE  AMERICAN  CONSTITUTION       §  34 

the  authority  of  the  United  States,  shall  be  the  supreme  law 
of  the  land,  and  the  judges  in  each  State  shall  be  bound 
thereby,  anything  in  the  Constitution  and  laws  of  any  State 
to  the  contrary  notwithstanding."1  It  will  be  noticed  that 
this  constitutional  provision  applied  to  existing  treaties  as 
well  as  treaties  which  might  be  made  in  the  future ;  and  it 
was  almost  at  once  decided  by  the  Supreme  Court  that  its 
effect  was  to  make  void,  without  the  necessity  of  any  legis- 
lative act  by  the  State,  all  state  legislation  inconsistent 
with  the  terms  of  treaties  entered  into  by  the  federal 
government. 2 

Furthermore,  the  federal  government  has  undoubtedly 
much  greater  power  to  affect  the  internal  affairs  of  the  States 
by  means  of  treaties  than  by  means  of  legislation,  not- 
withstanding some  early  dicta  to  the  contrary.3  Treaties 
made  by  Congress  under  the  Articles  of  Confederation  dealt 
with  matters  which  by  the  Constitution  are  excluded  from 
the  field  of  congressional  action,  such  as  the  right  of  aliens 
to  inherit,  to  dispose  of  property,  and  the  like,4  and  the 
framers  of  the  Constitution  undoubtedly  had  these  pro- 
visions in  mind  when  they  drafted  the  clause  of  the  Con- 
stitution quoted  above.  The  control  of  the  right  of  aliens 
to  dispose  of  or  to  inherit  property  is  outside  the  jurisdiction 
of  Congress  and  within  the  jurisdiction  of  the  several  States, 
but  the  Supreme  Court  decided  at  an  early  day  that  treaties 
on  these  subjects  would  supersede  conflicting  State  legisla- 
tion,5 and  numerous  later  cases  have  confirmed  this  de- 
cision.6 A  treaty  with  an  Indian  tribe  by  which  land  is 

1  Art.  VI,  par  2. 

aWare  v.  Hylton  (1796)  3  Dallas  199;  Fairfax  v.  Hunter  (1813)  7 
Cranch  603;  Chirac  v.  Chirac  (1817)  2  Wheaton  259;  Hauenstein  v. 
Lynham  (1879)  100  U.  S.  483. 

3  The  License  Cases  (1847)  5  Howard  504,  613;  Passenger  Cases 
(1849)  7  Howard  283,  465;  Cherokee  Tobacco  Case  (1870)  II  Wallace 
616,  620. 

4  Crandall,  Treaties,  Their  Making  and  Enforcement  (2d  ed.),  266. 
s  Fairfax  v.  Hunter  (1813)  7  Cranch  603. 

6  See  the  large  number  of  cases  both  federal  and  state  collected  in 
Crandall,  Treaties,  Their  Making  and  Enforcement  (26.  ed.),  248  and  250. 


§  34  THE  PRESIDENT  75 

ceded  by  the  Indians  and  becomes  part  of  the  territory  of  a 
State  may  prohibit  the  introduction  of  liquor  into  such 
territory,  and  to  that  extent  prevent  state  legislation  on  the 
subject  within  that  territory. T  In  1913  a  federal  statute  was 
passed  regulating  the  killing  of  migratory  birds.2  This 
statute  was  held  unconstitutional  in  the  federal  district 
courts.3  An  appeal  from  these  decisions  was  heard  by  the 
Supreme  Court,  but  decision  was  suspended  pending  nego- 
tiation of  a  treaty  on  the  subject  with  Great  Britain.  In 
1916  a  treaty  was  made  with  Great  Britain  by  which  Great 
Britain  and  the  United  States  agreed  to  enact  legislation 
for  the  protection  of  the  migratory  birds  which  pass  back 
and  forth  between  the  United  States  and  Canada.  Legisla- 
tion ancillary  to  this  treaty  was  passed  by  Congress  which  is 
substantially  the  same  as  the  statute  of  1913.  In  1920  the 
case  of  Missouri  v.  Holland*  came  before  the  Supreme  Court, 
in  which  the  State  of  Missouri  sought  to  enjoin  the  enforce- 
ment of  the  legislation  ancillary  to  the  treaty  on  the  ground 
that  it  was  unconstitutional.  In  upholding  the  statute 
Justice  Holmes  said  in  part5: 

" .  .  .  Acts  of  Congress  are  the  supreme  law  of  the 
land  only  when  made  in  pursuance  of  the  Constitution, 
while  treaties  are  declared  to  be  so  when  made  under  the 
authority  of  the  United  States.  It  is  open  to  question 
whether  the  authority  of  the  United  States  means  more 
than  the  formal  acts  prescribed  to  make  the  convention. 
We  do  not  mean  to  imply  that  there  are  no  qualifications 
to  the  treaty-making  power ;  but  they  must  be  ascertained 
in  a  different  way.  It  is  obvious  that  there  may  be  mat- 
ters of  the  sharpest  exigency  for  the  national  well-being 

1  United  States  v.  Forty- three  Gallons  of  Whiskey  (1876)  93  U.  S. 
1 88;  Dick  v.  United  States  (1908)  208  U.  S.  340;  Clairmount  v.  United 
States  (1912)  225  U.S.  551. 

3  Act  of  March  4,  1913,  37  Stat.  828. 

3  United  States  v.  Shauver  (1914)  214  Fed.  154;  United  States  v. 
McCullagh  (1915)  221  Fed.  288. 

<  252  U.  S.  416. 

s  Ibid.,  433  to  435. 


76         THE  AMERICAN  CONSTITUTION       §  34 

that  an  act  of  Congress  could  not  deal  with  but  that  a 
treaty  followed  by  such  an  act  could,  and  it  is  not  lightly 
to  be  assumed  that,  in  matters  requiring  national  action, 
'  a  power  which  must  belong  to  and  somewhere  reside  in 
every  civilized  government '  is  not  to  be  found.  A  ndrews 
v.  Andrews,  188  U.  S.  14,  33.  What  was  said  in  that  case 
with  regard  to  the  powers  of  the  States  applies  with  equal 
force  to  the  powers  of  the  nation  in  cases  where  the 
States  individually  are  incompetent  to  act.  .  .  .  The 
treaty  in  question  does  not  contravene  any  prohibitory 
words  to  be  found  in  the  Constitution.  The  only  ques- 
tion is  whether  it  is  forbidden  by  some  invisible  radiation 
from  the  general  terms  of  the  Tenth  Amendment.  We 
must  consider  what  this  country  has  become  in  deciding 
what  that  Amendment  has  reserved. 

"Here  a  national  interest  of  very  nearly  the  first  magni- 
tude is  involved.  It  can  be  protected  only  by  national 
action  in  concert  with  that  of  another  power.  The  sub- 
ject-matter is  only  transitorily  within  the  State  and  has 
no  permanent  habitat  therein.  But  for  the  treaty  and  the 
statute  there  soon  might  be  no  birds  for  any  power  to  deal 
with.  We  see  nothing  in  the  Constitution  that  compels 
the  government  to  sit  by  while  a  food  supply  is  cut  off 
and  the  protectors  of  our  forests  and  our  crops  are  de- 
stroyed. It  is  not  sufficient  to  rely  upon  the  States.  The 
reliance  is  vain,  and  were  it  otherwise,  the  question  is 
whether  the  United  States  is  forbidden  to  act.  We  are  of 
opinion  that  the  treaty  and  statute  must  be  upheld." 

The  sound  doctrine  with  regard  to  the  treaty  power  seems 
to  be  this,  that  the  national  government  may  by  treaty 
deal  with  any  matter  which  is  an  appropriate  subject  of 
international  agreement,  as  long  as  it  does  not  contravene 
any  express  prohibition  in  the  Constitution,  and  that  such  a 
treaty  and  legislation  in  pursuance  of  it  are  the  supreme  law 
of  the  land,  though  they  deal  with  matters  which  are  ordi- 
narily reserved  to  the  States,  and  to  which  the  ordinary  pow- 


THE  PRESIDENT  77 

ers  of  Congress  do  not  extend.  If  this  were  not  so  such 
matters  could  not  be  adequately  dealt  with,  since  the  States 
are  expressly  excluded  from  the  field  of  international  rela- 
tions. In  the  early  days  of  the  Republic  Calhoun,  who  be- 
came so  strong  a  States'  Rights  advocate,  in  the  course  of 
congressional  debate,  expressed  himself  on  the  subject  of 
the  treaty-making  power  with  great  force  and  lucidity,  as 
follows1: 

"The  enumeration  of  legislative  powers  in  the  Constitu- 
tion has  relation  then,  not  to  the  treaty  power,  but  to  the 
powers  of  the  State.  In  our  relation  to  the  rest  of  the 
world  the  case  is  reversed.  Here  the  State  disappears. 
Divided  within,  we  present  the  exterior  of  undivided 
sovereignty.  The  wisdom  of  the  Constitution  appears 
conspicuous.  When  enumeration  was  needed,  there  we 
find  the  powers  enumerated  and  exactly  defined;  when 
not,  we  do  not  find  what  would  be  vain  and  pernicious. 
Whatever,  then,  concerns  our  foreign  relations ;  whatever 
requires  the  consent  of  another  nation,  belongs  to  the 
treaty  power ;  can  only  be  regulated  by  it ;  and  it  is  com- 
petent to  regulate  all  such  subjects;  provided,  and  here 
are  its  true  limits,  such  regulations  are  not  inconsistent 
with  the  Constitution.  If  so  they  are  void.  No  treaty 
can  alter  the  fabric  of  our  government,  nor  can  it  do  that 
which  the  Constitution  has  expressly  forbade  to  be  done; 
nor  can  it  do  that  differently  which  is  directed  to  be  done 
in  a  given  mode,  and  all  other  modes  prohibited." 

§35.  The  President's  Power  to  Direct  International 
Affairs,2  The  President  as  chief  executive  of  the  nation 
has  exclusive  control  of  diplomatic  relations  with  foreign 
nations,  which  are  carried  on  through  the  Secretary  of 

'Annals,  I4th  Cong.,  ist  Sess.,  531.  See  Crandall,  Treaties,  Their 
Making  and  Enforcement  (26.  ed.),  246. 

2  For  fuller  treatment  of  this  subject  see  Butler,  Treaty-Making  Power 
of  the  United  States;  Crandall,  Treaties,  Their  Making  and  Enforcement 
(2  ed.),  chaps  8  and  9;  Moore,  "  Treaties  and  Executive  Agreements,"  20 
Political  Sc.  Quart.  385. 


78         THE  AMERICAN  CONSTITUTION       §  35 

State.  This  vests  in  him  the  power  to  largely  shape  our 
foreign  policy  and  our  relations  with  other  countries.  Also, 
as  commander-in-chief  of  the  army  and  navy  he  necessarily 
has  power  to  deal  with  other  governments  with  regard  to 
military  affairs.  Under  this  latter  authority  he  can  make 
agreements  with  other  powers  with  whom  we  are  cooper- 
ating as  to  the  disposition  of  military  forces.  Under  this 
authority,  also,  the  President  has  entered  into  agreements 
with  Great  Britain  with  regard  to  the  reduction  of  naval 
forces  on  the  Great  Lakes,  and  with  Mexico  for  reciprocal 
rights  to  cross  the  international  boundary  in  pursuit  of 
hostile  Indian  bands. x  Under  his  military  power  the  Presi- 
dent clearly  has  the  right  to  agree  to  terms  of  armistice,  and 
to  make  preliminary  arrangements  for  the  negotiation  of 
treaties.  Such  preliminary  arrangements  may  of  themselves 
be  of  the  greatest  importance,  as  where,  at  the  close  of  the 
war  with  Spain,  it  was  agreed,  as  a  preliminary  to  the 
negotiation  of  the  treaty  of  peace,  that  Spain  should  relin- 
quish its  claim  to  sovereignty  over  Cuba,  and  cede  Porto 
Rico  to  the  United  States.  At  the  close  of  the  Boxer  up- 
rising in  China  the  whole  situation  was  adjusted  by  a 
" protocol"  as  a  condition  of  the  withdrawal  of  military 
forces  without  any  subsequent  formal  treaty.  To  this  pro- 
tocol the  United  States  was  a  party.  It  is  probable  that 
in  this  instance  the  President  overstepped  his  constitutional 
powers,  the  international  situation  being  so  complicated  as 
to  make  the  negotiation  of  formal  treaties  practically 
impossible.  Under  his  general  power  as  chief  executive  the 
President  may  meet  a  particular  exigency  by  an  informal 
arrangement  for  a  modus  vivendi,  pending  formal  action  by 
treaty.2  I  The  President  has  frequently,  under  his  general 
power  to  conduct  diplomatic  correspondence  entered  into 
agreement  for  the  settlement  of  claims  by  American  citizens 
against  foreign  countries,  though  he  has  not  attempted  in 
this  way  to  settle  claims  of  foreigners  against  the  United 

1  Crandall,  Treaties,  Their  Making  and  Enforcement  (2d  ed.),  102  and 
105. 

3  Butler,  Treaty-Making  Power  of  the  United  States,  vol.  ii,  p.  369. 


§  35  THE  PRESIDENT  79 

States,  nor  of  the  United  States  Government  against  other 
countries.1 

Treaties  themselves  may  provide  for  the  settlement  by 
executive  agreement  of  certain  questions  which  may  arise 
under  them,  or  for  final  action  by  the  President  in  consumma- 
tion of  the  treaty.  This  has  occurred  with  special  frequency 
in  connection  with  treaties  for  the  settlement  of  boundary 
disputes.2  So  arbitration  treaties  may  leave  to  the  Presi- 
dent the  submission  of  controversies  to  arbitration,  and  the 
arrangements  for  their  settlement.  In  1904  and  1905  Mr. 
Hay  negotiated  a  number  of  arbitration  treaties  containing 
provisions  that  in  each  case  "the  high  contracting  parties 
before  appealing  to  the  permanent  court  of  arbitration, 
shall  conclude  a  special  agreement  defining  clearly  the  matter 
in  dispute  and  the  scope  of  the  power  of  the  arbitrators,  and 
fixing  the  period  for  the  formation  of  the  arbitral  tribunal 
and  the  several  stages  of  the  procedure."  The  Senate 
changed  the  word  "agreement"  to  "treaty,"  because  it  was 
not  willing  to  have  matters  submitted  to  arbitration  with- 
out its  concurrence,  and  President  Roosevelt  refused  to 
submit  the  treaties  in  their  altered  form  to  the  other  con- 
tracting parties  on  the  ground  that  nothing  would  be  gained, 
since  in  each  case  a  treaty  for  submission  to  arbitration 
would  have  to  be  negotiated.3 

Subjects  which  are  within  the  legislative  jurisdiction  of 
Congress  may  frequently  touch  upon  or  affect  international 
relations,  and  in  sucfi  cases  it  is  competent  for  Congress  to 
delegate  to  the  President  power  with  regard  to  such  rela- 
tions. So  in  dealing  with  international  commerce  Congress 
may  give  to  the  President  authority  to  declare  embargoes, 
and  in  levying  tariffs  it  may  vest  in  the  President  the  power 
to  suspend  or  enforce  duties  in  his  discretion  in  order  to 
procure  reciprocal  benefits  in  other  countries.  Congress  has 

1  Moore,  "Treaties  and  Executive  Agreements,"  20  Political  Sc. 
Quart.  385,  408  to  414. 

2Crandall,  Treaties,  Their  Making  and  Enforcement  (26.  ed.),  117. 

3  Ibid.,  119;  Moore,  "Treaties  and  Executive  Agreements, "  20  Politi* 
cal  Sc.  Quart.  385. 


8o         THE  AMERICAN  CONSTITUTION       §  36 

given  the  President  authority  to  make  agreements  with  other 
governments  as  to  copyrights  and  patents,  and  has  author- 
ized the  Postmaster  General,  under  the  President's  direction 
to  enter  into  postal  agreements.1  It  is  thus  apparent  that 
the  President  has  extensive  power  not  only  to  affect  inter- 
national policy,  but  to  enter  into  agreements  with  regard  to 
international  relations  without  the  concurrence  of  the 
Senate. 

§36.  International  Extradition.  The  State  authorities 
have  no  constitutional  right  to  surrender  fugitives  demanded 
by  foreign  governments.  Such  matters  are  within  the  field 
of  international  relations,  and  should  therefore  be  dealt 
with  by  the  national  government.2  Where  there  is  no 
treaty  involved  the  surrender  of  fugitives  is  not  a  matter  of 
duty  recognized  by  international  law,  but  merely  a  matter  of 
comity.3  Without  a  treaty  or  legislation  on  the  subject  the 
President  has  held  himself  unauthorized  to  make  such  a 
surrender,4  and  it  is  the  general  view  that  he  has  no  such 
inherent  power.5  Treaties  on  the  subject  are  now  very 
general.  In  United  States  v.  Rauscher6  there  was  presented 
to  the  Supreme  Court  of  the  United  States  the  question 
whether,  when  a  person  has  under  a  treaty  been  extradicted 
from  a  foreign  country  charged  with  a  certain  crime,  he  may 
be  tried  for  a  different  crime.  The  decisions  in  the  lower 
federal  courts  and  in  the  State  courts  had  been  conflicting, 
although  most  of  them  had  answered  the  question  in  the 
negative.  A  negative  answer  had  also  been  given  by  most 
of  the  writers  on  the  subject.  Extradition  treaties  are  part 
of  the  law  of  the  land,  and  the  court  held  that  the  fair  intent 

1  See  the  full  discussion  of  this  subject  in  Crandall,  Treaties,  Their 
Making  and  Enforcement,  chap.  9. 

3  See  sec.  208. 

s  Moore,  Extradition,  sees.  9  to  15;  W.  E.  Hall,  International  Law  (7th 
ed.),  58  to  60;  Stockton,  Outlines  of  International  Law,  189;  Hershey, 
Essentials  of  International  Law,  263  to  264. 

4  Holmes  v.  Jennison  (1840)  14  Peters  540,  541. 

s  Moore,  Extradition,  sees.  16  to  27;  Butler,  Treaty-Making  Power  oj 
the  United  States,  sees.  433  to  435. 
6  (1886)  119!!.  S.  407. 


§  37  THE  PRESIDENT  81 

of  such  treaties  is  that  the  fugitive  ' '  shall  be  tried  only  for 
the  offense  with  which  he  is  charged  in  the  extradition  pro- 
ceedings and  for  which  he  was  delivered  up,  and  that  if  not 
tried  for  that,  or  after  trial  and  acquittal,  he  shall  have  a 
reasonable  time  to  leave  the  country  before  he  is  arrested 
upon  the  charge  of  any  other  crime  committed  previous  to 
his  extradition."1  But  the  court  also  decided  at  the  same 
session  that  if  a  fugitive  has  been  kidnapped  in  a  foreign 
country  and  brought  into  the  State  against  whose  laws  he 
has  offended,  although  there  is  an  extradition  treaty  with 
the  country  from  which  he  was  taken,  the  federal  courts  can 
give  him  no  relief,  for  no  constitutional,  statutory,  or  treaty 
rights  are  thereby  violated.2 

§37.  The  President's  Part  in  Law  Making.  The  Con- 
stitution directs  that  tbe  President  "  shall  from  time  to  time 
give  to  the  Congress  information  of  the  state  of  the  Union, 
and  recommend  to  their  consideration  such  measures  as  he 
shall  judge  necessary  and  expedient."3  We  have  as  a  result 
of  this  direction  the  "  presidential  messages"  submitted  by 
our  chief  executive  to  Congress.  Washington  and  John 
Adarns  read  or  spoke  their  messages,  but  Jefferson  started 
the  practice  of  sending  his  messages  to  be  read  by  the  clerk, 
and  this  practice  was  continued  by  all  subsequent  Presi- 
dents until  Wilson  reverted  to  the  practice  of  delivering  his 
messages  in  person.  Although  the  President  plays  no  direct 
part  in  initiating  legislation,  the  part  he  plays  in  suggesting 
necessary  laws  is  very  important.  Also,  through  his  power 
of  appointment  he  can  do  much  to  bring  pressure  to  bear  upon 
members  of  Congress  in  favor  of  legislation  which  he  desires. 

It  is,  however,  through  the  veto  power  that  the  President 
exerts  a  direct,  and  by  far  the  greatest  influence  upon  law 
making.  On  this  point  the  Constitution  provides4 : 

1  Ibid.,  424.  Followed  in  Cosgrove  v.  Winney  (1899)  174  U.  S.  64. 
Compare  with  the  law  under  interstate  rendition,  sec.  213. 

aKer  v.  Illinois  (1886)  119  U.  S.  436.  Compare  with  the  law  under 
interstate  rendition,  sec.  212. 

3  Art.  II,  sec.  3. 

*  Art.  I,  sec.  7,  pars.  2  and  3. 


82         THE  AMERICAN  CONSTITUTION       §  37 

"Every  bill  which  shall  have  passed  the  House  of  Repre- 
sentatives and  the  Senate  shall,  before  it  becomes  a  law, 
be  presented  to  the  President  of  the  United  States;  if  he 
approve,  he  shall  sign  it,  but  if  not,  he  shall  return  it, 
with  his  objections,  to  that  House  in  which  it  shall  have 
originated,  who  shall  enter  the  objections  at  large  on  their 
journal,  and  proceed  to  reconsider  it.  If  after  such  recon- 
sideration two  thirds  of  that  House  shall  agree  to  pass  the 
bill,  it  shall  be  sent,  together  with  the  objections,  to  the 
other  House,  by  which  it  shall  likewise  be  reconsidered; 
and  if  approved  by  two  thirds  of  that  House  it  shall 
become  a  law.  But  in  all  such  cases  the  votes  of  both 
Houses  shall  be  determined  by  yeas  and  nays,  and  the 
names  of  the  persons  voting  for  and  against  the  bill  shall 
be  entered  on  the  journal  of  each  House  respectively. 
If  any  bill  shall  not  be  returned  by  the  President  within 
ten  days  (Sundays  excepted)  after  it  shall  have  been 
presented  to  him,  the  same  shall  be  a  law  in  like  manner 
as  if  he  had  signed  it,  unless  the  Congress  by  their  ad- 
journment prevent  its  return;  in  which  case  it  shall  not 
be  a  law. 

"Every  order,  resolution,  or  vote  to  which  the  concur- 
rence of  the  Senate  and  House  of  Representatives  may  be 
necessary  (except  on  a  question  of  adjournment)  shall  be 
presented  to  the  President  of  the  United  States ;  and  be- 
fore the  same  shall  take  effect  shall  be  approved  by  him, 
or  being  disapproved  by  him,  shall  be  repassed  by  two 
thirds  of  the  Senate  and  the  House  of  Representatives, 
according  to  the  rules  and  limitations  prescribed  in  the 
case  of  a  bill." 

This  provision  does  not  apply  to  proposed  amendments  to 
the  Constitution,1  nor  has  the  second  paragraph  quoted 
been  interpreted  as  applying  to  any  action  of  Congress 
except  such  as  is  "necessary"  to  legislation.2  In  the 

1  See  sec.  19. 

a  Story  on  the  Constitution  (5th  ed.),  sec.  892  \  Willoughby  on  the 
Constitution,  sec.  254;  25  R.  C.  L.  886. 


§  37  THE  PRESIDENT  83 

Constitutional  Convention  it  was  debated  whether  the  veto 
of  the  President  should  be  absolute  or  qualified,  whether  the 
veto  power  should  be  vested  in  the  President  alone  or  in  the 
President  and  the  Supreme  Court,  and  whether,  if  a  quali- 
fied power  of  veto  were  to  be  vested  in  the  President,  it 
should  be  overcome  by  a  two  thirds  or  a  three  fourths  vote 
of  Congress.1  The  provision  which  was  finally  adopted  is 
moderate,  and  has,  on  the  whole,  proved  wise  and  useful. 
Though  the  first  Presidents  exercised  the  power  only  when 
they  thought  that  the  legislation  in  question  was  uncon- 
stitutional, Presidents  since  the  day  of  Jackson  have  not 
hesitated  to  veto  measures  which  they  thought  were  unwise. 
President  Grant  in  his  annual  message  of  December  I,  1873, 
recommended  an  amendment  to  the  Constitution  permit- 
ting the  President  to  veto  part  of  a  bill  without  vetoing 
all  of  it.  This  recommendation  was  not  acted  upon  by 
Congress,  but  the  agitation  for  such  a  change  in  the  Con- 
stitution continues,  and  such  an  amendment  is  most  desir- 
able. A  number  of  our  state  constitutions  contain  such  a 
provision. 

As  is  shown  by  the  constitutional  provision  quoted  above, 
a  congressional  enactment  may  become  a  law  without  the 
concurrence  of  the  President  if  he  fails  to  return  it  within 
ten  days,  Sundays  excepted,  unless  Congress  has  adjourned 
within  that  period,  in  which  case  the  act  does  not  become  a 
law  through  the  President's  inaction.  It  has  been  held  by] 
the  Supreme  Court  that  the  President  may  constitutionally  S 
sign  a  bill  during  a  congressional  recess. 2  The  court  in  that  \ 
case  expressly  declined  to  pass  upon  the  question  whether 
a  bill  may  be  signed  by  the  President  after  Congress  has 
adjourned.  Lincoln  did  in  fact  sign  a  bill  after  Congress 
had  adjourned,  but  the  Judiciary  Committee  of  the  House 
of  Representatives  expressed  its  view  that  this  was  contrary 
to  the  intention  of  the  Constitution.  The  House,  however, 
took  no  action  on  this  committee  report,  but  at  the  next  ses- 
sion Congress  passed  an  amendment  to  the  law  so  signed  ap- 

1  Story  on  the  Constitution  (sth  ed.)  sees.  881  to  891. 

a  La  Abra  Silver  Mining  Co.  v.  United  States  (1899)  175  U.  S.  423. 


84         THE  AMERICAN  CONSTITUTION  §§38,39 

patently  recognizing  its  validity. I  Monroe  and  Cleveland 
both  decided  not  to  sign  bills  after  adjournment,  which  had 
been  overlooked  while  Congress  was  in  session. 2  President 
Wilson,  however,  upon  the  advice  of  his  Attorney-General 
signed  eight  bills  after  the  adjournment  of  Congress  in 
June,  1920. 3  State  constitutions  often  make  provision  for 
the  signing  of  bills  by  the  governor  within  a  given  period 
after  the  State  Legislature  has  adjourned,  but  where  there 
is  no  such  provision  the  preponderant  view  is  that  a  signing 
after  adjournment  is  valid.4 

§38.  The  President's  Power  to  Convene  and  Adjourn  the 
Houses  of  Congress.  The  Constitution  declares  that  "Con- 
gress shall  assemble  at  least  once  in  every  year,  and  such 
meeting  shall  be  on  the  first  Monday  in  December,  unless 
they  shall  by  law  appoint  a  different  day."5  No  different 
day  has  been  appointed.  It  is  further  provided,  however, 
that  the  President  "may,  on  extraordinary  occasions,  con- 
vene both  houses,  or  either  of  them,  and  in  case  of  disagree- 
ment between  them  with  respect  to  the  time  of  adjournment 
he  may  adjourn  them  to  such  time  as  he  may  think  proper."  6 
The  President's  power  to  adjourn  Congress  is  confined  to  the 
single  contingency  named,  and  has  never  been  exercised. 
On  the  other  hand,  his  power  to  summon  Congress  in  special 
session  has  been  frequently  made  use  of. 

§39.  Suspension  of  the  Writ  of  Habeas  Corpus.  Among 
the  prohibitions  contained  in  the  first  article  of  the  Constitu- 
tion is  one  to  the  effect  that  "the  privilege  of  the  writ  of 

1  An  elaborate  argument  in  favor  of  the  validity  of  statutes  signed  by 
the  President  after  the  adjournment  of  Congress  will  be  found  in  the 
decision  in  United  States  v.  Alice  Weil  (1894)  29  Ct.  Cl.  526. 

2  Renick,  "The  Power  of  the  President  to  Sign  Bills  after  the  Adjourn- 
ment of  Congress,  "  32  American  L.  Rev.  208. 

3  See  F.  Rogers,  "The  Power  of  the  President  to  Sign  Bills  after 
Congress  Has  Adjourned,"  30  Yale  L.  Jour,  i,  for  a  defense  of  this 
procedure. 

4Barnett,  "The  Executive  Control  of  Legislation,"  41  American  L. 
Rev.,  215,  230  et  seq. 
s  Art.  I,  sec.  4,  par.  2. 
6  Art.  II,  sec.  3. 


§  40  THE  PRESIDENT  85 

habeas  corpus  shall  not  be  suspended,  unless  when  in  cases 
of  rebellion  or  invasion  the  public  safety  may  require  it."1 
Since  this  provision  is  contained  in  the  article  dealing  with 
the  legislative  branch  of  the  government,  it  is  fair  to  presume 
that  the  right  to  suspend  the  use  of  the  writ  was  intended  to 
be  vested  in  Congress.  During  the  Civil  War  Lincoln  was 
advised  by  his  attorney-general  that  he  might  suspend  the 
privilege  of  the  writ  by  executive  order,  and  he  proceeded 
to  do  so.  Chief  Justice  Taney  of  the  Supreme  Court  ex- 
pressed his  opinion  as  being  against  the  right  of  the  Presi- 
dent to  exercise  this  power,  and  his  view  has  been  generally 
accepted  ,as  correct,  although  the  contrary  view  had  its 
strong  supporters  at  the  \ATS\Z.Z^^' 

§40.     Impeachment*  The  provisions  of  the  Constitution 
relative  to  impeachment  are  as  follows: 

"The  House  of  Representatives  .  .  .  shall  have  the 
sole  power  of  impeachment.4 

"The  Senate  shall  have  the  sole  power  to  try  all  impeach- 
ments. When  sitting  for  that  purpose,  they  shall  be  on 
oath  or  affirmation.  When  the  President  of  the  United 
States  is  tried,  the  Chief  Justice  shall  preside:  and  no 
person  shall  be  convicted  without  the  concurrence  of 
two  thirds  of  the  members  present. 

"Judgment  in  cases  of  impeachment  shall  not  extend 
further  than  to  removal  from  office,  and  disqualification 
to  hold  and  enjoy  any  office  of  honor,  trust,  or  profit  under 

1  Art  I,  sec.  9,  par.  2. 

2  Ex  parte  Merryman  (1861)  Taney 's  Rep.  246.    See  also  Ex  parte 
Benedict  (1862)  Fed.  Case  No.  I,  292.    Story  on  the  Constitution  (5th 
ed.),  sec.  1342,  n. ;  Willoughby  on  the  Constitution,  sec.  738,  and  articles 
there  cited. 

3  See  for  fuller  discussions  of  this  subject  Raivle  on  the  Constitution, 
209  to  219;  Story  on  the  Constitution  (5th  ed.),  sees.  781  to  813;  D.  Y. 
Thomas,  "  The  Law  of  Impeachment  in  the  United  States, "  2  A  mer .  Pol. 
Sc.  Rev.  378;  W.  Brown,  "  The  Impeachment  of  the  Federal  Judiciary, " 
26  Harv.  L.  Rev.  684;  W.  A.  Estrich,  "The  Law  of  Impeachment,"  20 
Case  and  Comment  454;  Beveridge's  Life  of  John  Marshall,  vol.  iii,  chap.  4, 
with  regard  to  the  trial  of  Justice  Chase. 

*  Art.  I,  sec.  2,  par.  5. 


86         THE  AMERICAN  CONSTITUTION       §  40 

the  United  States;  but  the  party  convicted  shall,  never- 
theless, be  liable  and  subject  to  indictment,  trial,  judg- 
ment, and  punishment,  according  to  law.1 

"  The  President,  Vice-President,  and  all  civil  officers  of 
the  United  States  shall  be  removed  from  office  on  im- 
peachment for  and  conviction  of  treason,  bribery,  or 
other  high  crimes  and  misdemeanors."2 

According  to  the  English  practice  at  the  time  of  the 
adoption  of  the  Constitution  any  subject  of  the  king  was 
liable  to  impeachment,  whether  he  occupied  an  official 
position  or  not.  It  seems  probable,  however,  that  the  Con- 
stitution, in  declaring  that  "the President,  Vice-President, 
and  all  civil  officers  of  the  United  States  shall  be  removed 
from  office  on  impeachment,"  was  intended  to  limit  this 
proceeding  to  such  officers. 3  Senator  Blount  was  impeached 
in  1797,  but  before  his  impeachment  he  had  been  expelled 
from  the  Senate.  He  pleaded  to  the  jurisdiction  of  the 
Senate  on  the  ground  that  Senators  are  not  civil  officers 
within  the  meaning  of  the  Constitution,  and  that,  further- 
more, he  was  no  longer  a  member  of  the  Senate.  His  plea 
to  the  jurisdiction  was  upheld,  and  this  vote  has  been  inter- 
preted as  a  declaration  that  members  of  Congress  are  not 
subject  to  impeachment.4  This  position  is  supported  by 
the  fact  that  the  Constitution  itself  distinguishes  members 
of  Congress  from  civil  officers,  where  it  declares  that  "no 
Senator  or  Representative  shall,  during  the  time  for  which 
he  was  elected,  be  appointed  to  any  civil  office  under  the 
authority  of  the  United  States,  which  shall  have  been 
created,  or  the  emoluments  whereof  shall  have  been  in- 
creased during  such  time;  and  no  person  holding  any  office 
under  the  United  States  shall  be  a  member  of  either  house 

1  Art.  I,  sec.  3,  pars.  6  and  7. 

*  Art.  II,  sec.  4. 

3  The  Federalist,  No.  65. 

4 Sergeant,  Constitutional  Law,  376;  D.  Y.  Thomas,  "The  Law  of 
Impeachment  in  the  United  States,"  2  Amer.  Pol.  Sc.  Rev.,  378,  386; 
W.  A.  Estrich,  "The  Law  of  Impeachment,"  20  Case  and  Comment, 
454,  459- 


§  40  THE  PRESIDENT  87 

during  his  continuance  in  office."1  It  seems  equally  clear 
that  officers  of  the  army  and  navy  are  not  civil  officers 
within  the  intendment  of  the  constitutional  provisions  as  to 
impeachment. 

The  first  grounds  for  impeachment  which  were  agreed  to 
by  the  Constitutional  Convention  were  "malconduct  or 
neglect  in  the  execution  of  his  office."2  The  Committee  of 
Detail  seems  to  have  favored  using  the  words  "treason, 
bribery,  or  corruption."3  In  debate  "treason,  bribery,  and 
maladministration"  was  suggested,  but  this  was  thought  to 
be  too  indefinite,  and  finally  the  present  words,  "treason, 
bribery,  or  other  high  crimes  and  misdemeanors"  were 
agreed  to.4  It  is  clear  from  the  impeachment  trials  which 
have  been  held  that  it  is  not  necessary  to  charge  the  defend- 
ant with  acts  which  would  constitute  indictable  offenses 
under  the  federal  statutes.  What  are  such  high  crimes  and 
misdemeanors  as  to  justify  conviction  is  a  question  which 
the  Senate  will  determine  in  each  case,  and  from  their  deter- 
mination there  is  no  appeal.  However,  it  seems  safe  to  say 
that,  on  the  one  hand,  there  should  not  be  a  conviction  ex- 
cept upon  proof  of  wilful  or  corrupt  misconduct  in  office, 
or  of  acts  which  are  otherwise  criminal  in  character,  but  that 
on  the  other  hand,  under  English  parliamentary  precedents 
the  acts  charged  need  not  be  such  as  to  duplicate  any  crime 
previously  defined  and  punished  by  courts  of  law.5 

Although  most  of  the  acts  charged  in  the  nine  impeach- 
ment trials  held  under  our  Federal  Constitution6  are  acts 
of  official  misconduct,  it  is  safe  to  say  that  failure  on  the  part 
of  an  officer  to  perform  his  official  duties,  or  acts  outside  of 

1  Art.  I,  sec.  6,  par.  2. 

2  Farrand,  The  Records  of  the  Federal  Convention,  vol.  i,  p.  90. 
a  Ibid.,  vol.  ii,  p.  172. 

4  Ibid.,  vol.  ii,  p.  550. 

s  Story  on  the  Constitution  (5th  ed.),  sees.  796  to  800;  W.  Brown,  "The 
Impeachment  of  the  Federal  Judiciary, "  26  Harv.  L.  Rev.,  684,  689  to  699; 
D.  Y.  Thomas,  "The  Law  of  Impeachment  in  the  United  States,"  2 
Amer.  Pol.  Sc.  Rev.,  378. 

6  For  a  synopsis  of  these  cases  see  W.  Brown,  "The  Impeachment  of 
the  Federal  Judiciary, "  26  Harv.  L.  Rev.,  684,  699  to  705. 


88         THE  AMERICAN  CONSTITUTION       §  40 

his  official  duties,  which  meet  the  test  suggested  above  and 
show  an  unfitness  for  office,  are  sufficient  to  support  an 
impeachment.1 

William  W.  Belknap  when  Secretary  of  War  was  accused 
of  accepting  part  of  the  profits  of  an  army  post  tradership 
from  a  trader  whom  he  had  appointed.  He  resigned,  and  his 
resignation  was  accepted  by  the  President  before  he  was 
impeached.  When  impeached  he  pleaded  to  the  jurisdiction 
of  the  Senate  on  the  ground  that  at  the  time  of  impeachment 
he  was  no  longer  a  civil  officer  of  the  United  States.  This 
point  was  decided  against  him  by  a  majority  of  less  than 
two  thirds,2  but  upon  the  final  vote  he  was  acquitted,  a 
majority  of  the  Senators  voting  for  acquittal  doing  so  on 
the  ground  that  in  their  opinion  the  Senate  had  no  jurisdic- 
tion. In  1912  Judge  Archbald  of  the  United  States  Circuit 
Court,  designated  a  member  of  the  Commerce  Court,  was 
impeached  by  the  House,  the  first  six  articles  setting  forth 

1  Senator  Blount  was  charged  with  conspiracy  to  promote  hostile 
expeditions  against  Spanish  possessions,  and  to  stir  up  certain  Indian 
tribes.    One  of  the  charges  against  President  Johnson  was  that  he  made 
inflammatory  speeches  against  Congress.    Judge  Humphreys  was  con- 
victed on  charges  not  only  of  treasonable  conduct,  but  of  refusing  to 
perform  the  functions  of  his  office.    One  of  the  charges  against  Judge 
Swayne  was  that  he  resided  outside  of  his  judicial  district  in  violation  of 
the  statute.    In  the  impeachment  of  Judge  Archbald  one  of  the  counts 
was  that  he  made  a  trip  abroad  at  the  expense  of  a  magnate  of  large 
corporate  interests.    To  be  sure  the  only  ones  among  these  persons  who 
were  convicted  were  Judge  Humphreys  and  Judge  Archbald,  and  the 
latter  was  not  convicted  on  the  charge  referred  to,  but  in  none  of  the 
cases  does  it  appear  that  the  charges  noted  were  held  to  be  outside  of 
the  scope  of  impeachment  proceedings.    See  W.  Brown,  "  The  Impeach- 
ment of  the  Federal  Judiciary, "  26  Harv.  L.  Rev.,  684,  692  and  699  to 

70S- 

2  The  presiding  officer  ruled  that  the  Senate's  jurisdiction  was  sus- 
tained.   Upon  a  resolution  to  proceed  with  the  trial  as  upon  a  plea  of 
not  guilty  the  result  was  21  yeas,  16  nays,  36  not  voting.    In  the  trial  of 
President  Johnson  evidence  was  admitted  fifteen  times  when  less  than 
two  thirds  voted  for  its  admission.    D.  Y.  Thomas,  "The  Law  of  Im- 
peachment in  the  United  States,"  2  Amer.  Pol.  Sc.  Rev.,  378,  389,  390. 
It  seems  to  be  a  fair  deduction  that  questions  preliminary  to  the  final 
vote  may  be  decided  by  a  majority  instead  of  a  two  thirds  vote. 


§  40  THE  PRESIDENT  89 

alleged  misconduct  while  a  member  of  the  Commerce  Court, 
and  counts  seven  to  twelve  being  based  upon  acts  alleged  to 
have  been  done  while  a  United  States  District  Judge,  an 
office  held  by  him  immediately  before  he  was  appointed 
circuit  judge.  Though  he  was  convicted  on  the  first  six 
counts  and  on  the  thirteenth  (a  blanket)  count,  he  was 
acquitted  on  all  of  the  counts  charging  misconduct  while  a 
district  judge.  The  conduct  of  the  Senate  in  these  two  trials 
would  seem  to  show  a  persistent  feeling  in  that  body  that  a 
person  is  not  impeachable  after  his  term  of  office  has  come 
to  an  end  by  expiration  or  resignation.1  Whether  an  officer 
can  be  convicted  upon  impeachment  for  acts  done  before 
he  entered  upon  his  office  is  a  question  which  has  not  been 
raised  in  federal  proceedings.  Governor  Sulzer  of  New 
York,  however,  notwithstanding  the  strenuous  objections  of 
his  counsel,  was  convicted  and  removed  from  office  on  counts 
charging  him  with  having  made  and  verified  an  incorrect 
statement  of  his  campaign  receipts  and  expenditures  before 
entering  upon  his  office.2 

1  As  to  the  precedents  in  State  trials  see  D.  Y.  Thomas,  "The  Law  of 
Impeachment  in  the  United  States,"  2  Amer.  Pol.  Sc.  Rev.,  378,  390; 
W.  A.  Estrich,  "The  Law  of  Impeachment,"  20  Case  and  Comment,  454, 

459- 

2  W.  A.  Estrich,  "  The  Law  of  Impeachment, "  20  Case  and  Comment, 
454,  458.    The  possibility  of  a  President's  corrupting  his  electors  was 
particularly  mentioned  in  the  Constitutional  Convention  as  a  reason 
for  impeachment.    Farrand,  The  Records  of  the  Federal  Convention,  vol. 
ii,  p.  69. 


CHAPTER  V 

THE   JUDICIARY 

§41.  Constitution  and  Tenure  of  the  Federal  Judiciary. 
The  third  article  of  the  Constitution  deals  with  the  judi- 
ciary, and  the  first  section  of  that  article  is  as  follows : 

' '  The  judicial  power  of  the  United  States  shall  be  vested 
in  one  Supreme  Court,  and  in  such  inferior  courts  as  the 
Congress  may  from  time  to  time  ordain  and  establish. 
The  judges,  both  of  the  Supreme  and  inferior  courts, 
shall  hold  their  offices  during  good  behavior,  and  shall  at 
stated  times  receive  for  their  services  a  compensation 
which  shall  not  be  diminished  during  their  continuance 
in  office.1 

1  Article  IX  of  the  Articles  of  Confederation  contained  the  following 
provisions : 

"  The  United  States  in  Congress  assembled,  shall  have  the  sole  and 
exclusive  right  and  power  of  ...  appointing  courts  for  the  trial  of 
piracies  and  felonies  committed  on  the  high  seas  and  establishing 
courts  for  receiving  and  determining  finally  appeals  in  all  cases  of 
captures,  provided  that  no  member  of  Congress  shall  be  appointed  a 
judge  of  any  of  the  said  courts. 

"  The  United  States  in  Congress  assembled  shall  also  be  the  last 
resort  on  appeal  in  all  disputes  and  differences  now  subsisting  or  that 
hereafter  may  arise  between  two  or  more  States  concerning  boundary, 
jurisdiction,  or  any  other  cause  whatever;  ..." 

Then  follow  rather  elaborate  provisions  for  the  choosing  of  a  court  in 
each  instance  for  the  hearing  of  such  disputes.  Similar  provision  was 
also  made  for  the  settlement,  after  the  determination  of  -the  jurisdiction 
over  territory  claimed  by  two  States,  of  the  right  of  individuals  claiming 
title  to  the  same  land  under  grants  from  the  different  States.  For  an 
enumeration  of  the  cases  and  disputes  which  arose  under  these  provisions 
see  131  U.  S.,  Appendix,  pp.  xix  to  Ixiii. 

90 


§  41  THE  JUDICIARY  91 

The  Constitution  expressly  vests  in  the  President,  by  and 
with  the  advice  and  consent  of  the  Senate,  the  power  to 
appoint  Justices  of  the  Supreme  Court.1  As  we  have  seen 
he  is  also  given  like  authority  to  appoint  all  other  officers  of 
the  United  States,  except  that  "Congress  may  by  law  vest 
the  appointment  of  such  inferior  officers,  as  they  think 
proper,  in  the  President  alone,  in  the  courts  of  law,  or  in 
heads  of  departments."2  It  is  very  doubtful  if  the  latter 
provision  would  apply  to  any  members  of  the  federal  ju- 
diciary,3 and  certainly  there  has  never  been  any  attempt  to 
apply  it  to  them.  The  original  Judiciary  Act  of  1789  pro- 
vided for  a  Supreme  Court  to  be  composed  of  a  Chief  Jus- 
tice and  five  Associate  Justices.  In  1 807  the  appointment  of 
a  sixth  Associate  Justice  was  authorized,  in  1837  the  Presi- 
dent was  authorized  to  appoint  two  additional  Associate 
Justices,  and  in  1863  he  was  authorized  to  increase  the 
number  of  Associate  Justices  to  nine.  In  1866  it  was  pro- 
vided by  statute  that  the  number  of  Associate  Justices 
should  be  reduced  to  six  by  not  filling  vacancies  as  they 
should  occur.  After  two  Justices  had  died  it  was  enacted  in 
1869  that  the  Supreme  Court  should  thereafter  consist  of  a 
Chief  Justice  and  eight  Associate  Justices,  and  this  statute  is 
still  in  force.4  The  members  of  the  federal  judici- 
ary hold  their  positions  during  good  behavior,  and  are  only 
removable  by  impeachment.5 

The  original  Judiciary  Act  of  1789  divided  the  country 
into  thirteen  districts  with  a  District  Court  in  each,  and 
grouped  these  districts  into  three  circuits,  providing  that  a 
Circuit  Court  should  be  held  twice  yearly  in  each  district, 
which  should  be  held  by  two  Justices  of  the  Supreme  Court 
and  by  the  District  Judge.  Since  that  time  the  number  of 
districts  has  increased  to  nearly  eighty,  and  the  number  of 
circuits  has  been  increased  to  nine,  each  member  of  the 
Supreme  Court  being  assigned  to  a  circuit.  Just  before 
Jefferson  took  office  the  Federalist  Congress  passed  an  act 

1  Art.  II,  sec.  2,  par.  2.  3  Ibid. 

3  See  sec.  29.  '131  U.  S.,  Appendix,  p.  xi. 

s  See  sec.  40. 


92         THE  AMERICAN  CONSTITUTION       §  42 

for  the  rearrangement  of  circuits,  and  for  the  appointment  of 
a  Circuit  Judge  for  each  circuit,  thus  relieving  the  Supreme 
Court  Justices  of  the  duty  of  sitting  as  Circuit  Judges. 
Among  the  last  of  President  Adams's  duties  was  the  filling 
of  these  judicial  positions.  However,  immediately  after 
Jefferson  took  office,  supported  by  a  Republican  Congress, 
this  act  was  repealed. x  Later  legislation  provided  for  at  least 
one  Circuit  Judge  in  each  circuit.  The  Circuit  Courts  had 
both  original  and  appellate  jurisdiction.  In  1891  Circuit 
Courts  of  Appeals  were  established  in  each  circuit  in  order  to 
relieve  the  Supreme  Court  of  a  part  of  its  ever  increasing 
burden.  This  court  has  only  appellate  jurisdiction.  In  191 1 
the  Circuit  Courts  were  abolished.2  At  present,  therefore, 
the  federal  judicial  machinery  consists  of  the  Supreme  Court, 
the  Circuit  Courts  of  Appeals  and  the  District  Courts,  to- 
gether with  the  Court  of  Claims,  and  the  Supreme  Court 
and  Court  of  Appeals  of  the  District  of  Columbia.3 

§42.  Original  Jurisdiction  of  the  Supreme  Court  of  the 
United  States.  The  Constitution  provides  that  "In  all 
cases  affecting  ambassadors,  other  public  ministers  and 
consuls,  and  those  in  which  a  State  shall  be  a  party,  the 
Supreme  Court  shall  have  original  jurisdiction."4  By 
statute  the  Supreme  Court  is  given  exclusive  jurisdiction  of 
suits  against  ambassadors  or  other  public  ministers  and 
their  domestics,  and  original  but  not  exclusive  jurisdiction 
of  all  suits  brought  by  ambassadors  or  other  public  minis- 
ters, or  to  which  a  consul  or  vice-consul  is  a  party.5 

1  See  the  very  interesting  account  in  Beveridge's  Life  of  John  Mar- 
shall, vol.  iii,  chap.  2. 

aA  Commerce  Court  was  provided  for  by  act  of  June  18,  1910,  36 
Stat.  539,  but  was  abolished  by  act  of  Oct.  22,  1913,  chap.  32,  38  Stat. 
208. 

3  Such  tribunals  as  the  District  Courts  of  Alaska,  the  Canal  Zone, 
Hawaii,  and  Porto  Rico,  the  Supreme  Court  of  the  Philippines,  The 
United  States  Court  for  China,  and  the  Interstate  Commerce  Com- 
mission, are  not  treated  as  federal  courts  to  which  the  constitutional 
provisions  apply,  but  rather  as  agencies  of  Congress.    American  Ins.  Co. 
v.  Cantor  (1828)  i  Peters  511. 

4  Art.  Ill,  sec.  2,  par.  2.  s  Judicial  Code,  sec.  233. 


§  42  THE  JUDICIARY  93 

It  was  thoroughly  established  at  the  time  of  the  adoption 
of  the  Constitution  that  the  States  could  not  be  sued  with- 
out their  consent.1  When  it  was  provided  in  the  Constitu- 
tion that  "the  judicial  power  shall  extend  ...  to  con- 
troversies .  .  .  between  a  State  and  citizens  of  another 
State,"2  and  the  Supreme  Court  was  given  jurisdiction  of 
cases  to  which  a  State  is  a  party,  there  was  probably  no 
intention  to  allow  a  State  to  be  sued  by  a  citizen  of  another 
State.  Neither  Hamilton3  nor  Marshall4  thought  that  such 
a  right  was  given.  Very  soon  after  the  foundation  of  our 
government,  however,  the  Supreme  Court  took  the  opposite 
view  and  upheld  an  action  against  the  State  of  Georgia.5 
This  led  to  wide  popular  protest  which  resulted  in  the 
adoption  in  1798  of  the  Eleventh  Amendment,  which  is  as 
follows : 

"The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States 
by  citizens  of  another  State,  or  by  citizens  or  subjects  of 
any  foreign  State." 

The  clear  purpose  of  this  Amendment  cannot  be  evaded 
by  citizens  of  one  State,  having  claims  against  another 
State,  assigning  such  claims  to  their  own  State,  as  long  as 
the  citizens  remain  the  real  parties  in  interest,  and  the 
assignment  is  made  merely  to  constitute  the  State  the 
nominal  party  of  record.6  Though  the  Constitution  con- 

1  The  Federalist,  No.  81.     Though  technically  the  British  king  is  not 
suable,  the  petition  de  droit  and  the  monstrans  de  droit  do  in  fact  give  the 
subject  complete  redress.     Black.  Comm.,  vol.  i,  p.  243 :  vol.  iii,  p.  256. 

2  Art.  Ill,  sec.  2,  par.  i. 

3  The  Federalist,  No.  81. 

43  Elliot's  Debates,  555.  See  Madison's  view  to  the  same  effect, 
ibid.,  533. 

s  Chisholm  v.  Georgia  (1793)  2  Dallas  419,  Justice  Iredell  dissenting. 

6  New  Hampshire  v.  Louisiana  (1883)  108  U.  S.  76.  The  fact  that  a 
State  is  a  stockholder  in  a  defendant  corporation  does  not  prevent  suit 
being  brought  against  such  corporation.  Bank  of  United  States  v. 
Planters  Bank  of  Georgia  (1824)  9  Wheaton  904. 


94         THE  AMERICAN  CONSTITUTION       §  42 

tains  no  statement  on  the  subject,  it  is  well  established  that 
the  United  States  cannot  be  sued  without  its  consent  either 
by  a  citizen,1  or  by  a  State,2  and  that  a  State  cannot  be 
sued  by  one  of  its  own  citizens  even  when  a  constitutional 
point  is  raised.3 

Even  though  a  State  impairs  the  obligation  of  a  contract 
or  takes  property  without  due  process  of  law  it  cannot  be 
sued.  On  the  other  hand  the  mere  fact  that  a  person  is 
an  officer  of  a  State  does  not  protect  him  from  liability  for 
the  infraction  of  the  law.  But  suppose  an  officer  acts  or 
refuses  to  act  under  authority  of  a  state  statute  which  it  is 
claimed  is  unconstitutional,  does  a  resulting  action  against 
him  infringe  the  Eleventh  Amendment?  It  was  early 
decided  that  an  action  against  a  governor  in  his  official 
capacity  to  compel  him  to  act  upon  behalf  of  the  State  is 
forbidden. 4  An  action  against  a  state  officer  has  been 
treated  as  in  effect  an  action  against  the  State  when  its 
result  would  be  to  compel  the  State  to  specifically  perform 
a  contract.5  The  same  is  true  when  the  action  is  against 
an  officer  in  possession  of  property,  but  its  result  will  be  to 
determine  the  title  to  such  property,  which  is  claimed  by  the 
State  and  by  the  plaintiff. 6 

But  the  Supreme  Court  has  said  that  a  suit  against 
officers  of  a  State 

1 '  whether  brought  to  recover  money  or  property  in  the 
hands  of  such  defendants,  unlawfully  taken  by  them  in 
behalf  of  the  State,  or  for  compensation  in  damages  or  in  a 
proper  case  where  the  remedy  at  law  is  inadequate,  for 
an  injunction  to  prevent  such  wrong  and  injury,  or  for 
a  mandamus  in  a  like  case,  to  enforce  upon  the  defend- 
ant the  performance  of  a  plain  legal  duty,  purely  min- 

1  United  States  v.  Clarke  (1834)  8  Peters  436.  United  States  v.  Lee 
(1882)  106  U.  S.  196,  205  et  seq. 

3  Kansas  2.  United  States  (1907)  204  U.  S.  331,  341,  342. 

J  Hans  v.  Louisiana  (1889)  134  U.  S.  i. 

*  Governor  of  Georgia  v.  Madroza  (1828)  i  Peters  no. 

s  Louisiana  v.  Jumel  (1882)  107  U.  S.  711. 

6  Stanley  v.  Schwalbey  (1896)  162  U.  S.  255. 


§  42  THE  JUDICIARY  95 

isterial,  is   not   within  the    meaning    of    the  Eleventh 
Amendment  an  action   against  the  State."1 

On  the  principle  here  stated  officers  have  been  enjoined 
from  enforcing  statutory  rates  which  were  unconstitutional, 2 
and  from  enforcing  rates  under  a  statute  which  imposed 
such  heavy  penalties  for  breaches  of  its  provisions  that  it 
was  held  to  deny  the  equal  protection  of  the  laws, 3  and  from 
cancelling  as  directed  by  statute  certificates  of  sale  of  swamp 
land  previously  legally  acquired  from  the  State.4  In 
Hartman  v.  Greenhow5  the  Supreme  Court  held  that  manda- 
mus would  issue  to  compel  the  treasurer  of  Virginia  to  re- 
ceive coupons  in  payment  of  taxes.  In  Poindexter  v. 
Greenhow6  the  plaintiff  was  allowed  to  recover  damages  in 
trespass  for  property  taken  by  an  officer  of  the  State  under 
the  authority  of  an  unconstitutional  statute,  and  in  the 
early  case  of  United  States  v.  Peters1  recovery  was  allowed 
of  money  in  the  hands  of  a  state  officer  which  had  been 
improperly  taken  by  him.  It  has  been  held  that  an  action 
of  ejectment  may  be  maintained  against  an  agent  of  the 
government  for  land  which  he  claims  to  hold  on  behalf  of 
the  State,  as  long  as  the  action  will  not  conclude  the 
question  of  the  State's  title. 8 

It  has  been  declared  that  when  the  federal  government 
brings  an  action  against  an  individual  it  so  far  waives  its 
exemption  from  suit  that  legal  and  equitable  set-offs  may  be 
presented  by  the  defendant9;  and  when  a  State  brings  suit 
in  a  state  court  against  an  individual  and  gets  judgment, 
an  appeal  in  such  action  may  be  taken  by  the  defendant 
to  the  Supreme  Court  on  constitutional  points.10 

1  Pennoyerfl.  McConnaughy  (1891)  140  U.  S.  i,  10. 
a  Reagan  v.  Farmers'  L.  &  T.  Co.  (1894)  154  U.  S.   362;  Smyth  v. 
Ames  (1898)  169  U.  S.  466. 

*Ex  parte  Young  (1908)  209  U.  S.  123. 

*  Pennoyer  v.  McConnaughy  (1891)  140  U.  S.  I. 

s  (1880)  102  U.  S.  672.  6  (1884)  114  U.  S.  270. 

7(1809)  5  Cranch  115. 

*  United  States  v.  Lee  (1882)  106  U.  S.  196. 

9  The  Siren  v.  United  States  (1868)  7  Wallace  152. 

10  Cohens  v.  Virginia  (1821)  6  Wheaton  264. 


96         THE  AMERICAN  CONSTITUTION       §  42 
By  force  of  the  Judicial  Code1  the  Supreme  Court  has 

1 '  exclusive  jurisdiction  of  all  controversies  of  a  civil  nature 
where  a  State  is  a  party  except  between  a  State  and  its 
citizens,  or  between  a  State  and  citizens  of  other  States 
or  aliens,  in  which  latter  cases  it  shall  have  original,  but 
not  exclusive,  jurisdiction." 

The  Supreme  Court  has  not  jurisdiction  of  a  suit  brought 
by  a  State  to  which  one  of  its  citizens  is  a  party, 2  nor  has  it 
jurisdiction  of  a  suit  by  a  State  against  a  citizen  of  the 
District  of  Columbia. 3  It  has  jurisdiction  of  a  suit  brought 
by  the  United  States  against  a  State. 4 

Under  the  Articles  of  Confederation  the  jurisdiction  of 
disputes  between  States  was  given  to  Congress, 5  but  by  the 
Constitution  of  the  United  States  original  jurisdiction  of 
such  disputes  is  vested  in  the  Supreme  Court,  and,  as  has 
just  been  pointed  out,  such  jurisdiction  is  by  statutory 
provision  exclusive.  A  very  considerable  number  of  actions 
of  this  character  have  come  before  the  court,  particularly 
since  the  Civil  War.  No  attempt  will  be  made  to  cite  them 
all  or  to  discuss  them  at  length.  They  will  be  found  col- 
lected under  the  title  Judicial  Settlement  of  Controversies 
between  States  of  the  American  Union,  published  by  the 
Carnegie  Endowment  for  International  Peace. 6  The  largest 
number  of  these  cases  have  dealt  with  boundary  disputes, 
and  many  of  them  have  been  submitted  by  mutual  consent. 
The  jurisdiction  of  the  court  to  entertain  such  a  suit  was 
declared  in  Rhode  Island  v.  Massachusetts  in  i838.7  States 
also  have  sued  each  other  for  debts  owed  by  one  to  the  other. 

1  Sec.  233. 

2  California  v.  Southern  Pac.  Co.  (1894)  157  U.  S.  229;  Minnesota  v. 
Northern  Securities  Co.  (1902)  184  U.  S.  199. 

a  In  re  Massachusetts  (1905)  197  U.  S.  482. 
-t  United  States  v.  Texas  (1892)  143  U.  S.  621. 
s  See  note  to  sec.  41. 

6  Edited  by  James  Brown  Scott.    See  also  the  very  useful  summary 
and  discussion  of  these  cases  in  The  American  Supreme  Court  as  an 
International  Tribunal,  by  Herbert  A.  Smith. 

7  12  Peters  657. 


§  42  THE  JUDICIARY  97 

Such  a  proceeding  is  the  famous  case  of  Virginia  v.  West 
Virginia1  which  was  seven  times  before  the  Supreme  Court. 
In  South  Dakota  v.  North  Carolina2  it  was  held  that  a  State, 
to  which  its  citizens  had  assigned  obligations  of  another 
State,  reserving  no  interest  in  such  obligations,  might  sue 
the  debtor  State  to  collect  the  amount  due. 3  In  two  very 
interesting  cases  the  Supreme  Court  took  jurisdiction  to 
settle  disputes  between  States  brought  to  protect  the 
citizens  of  the  plaintiff  States  from  injurious  conduct  of  the 
defendant  States.  In  the  first  the  dispute  was  over  the 
discharge  of  sewage  into  a  river4;  in  the  second  it  was 
claimed  that  water  was  being  improperly  extracted  from 
a  river  by  the  defendant  State  for  irrigation. s  Judgments 
rendered  in  actions  between  States  have  always  been  ac- 
quiesced in  by  the  losing  party,  though  not  always 
promptly. 6  In  some  of  the  earlier  cases  the  question  of  the 
court's  power  to  enforce  its  judgments  against  States  was 
debated  by  counsel,  and  touched  upon  by  the  court  itself,  but 
in  the  case  of  Virginia  v.  West  Virginia  the  Supreme  Court 
found  itself  compelled  to  squarely  face  the  problem,  for  it 
looked  for  a  time  as  if  West  Virginia  was  not  going  to  volun- 
tarily comply  with  the  court's  judgment.  When  West 

1  The  reports  of  this  proceeding  in  its  various  stages  are  brought 
together  in  Judicial  Settlement  of  Controversies  between  States  of  the 
American  Union,  1650  et  seq.  They  may  be  found  in  220  U.  S.  I,  222 
U.  S.  17,  231  U.  S.  89,  234  U.  S.  117,  238  U.  S.  202,  241  U.  S.  531,  246 
U.  S.  566. 

a  (1904)  192  U.  S.  286. 

3  To  be  distinguished  from  New  Hampshire  v.  Louisiana  (1883)  108 
U.  S.  76,  on  the  ground  that  in  the  latter  case  the  citizens  were  still  the 
real  parties  in  interest. 

4  Missouri  v.  Illinois  (1901)  180  U.  S.  208,  (1906)  200  U.  S.  496,  (1906) 
202  U.  S.  600. 

s  Kansas  v.  Colorado  (1902)  185  U.  S.  125,  (1907)  206  U.  S.  46. 

6  In  the  case  of  Chisholm  v.  Georgia  (1793)  2  Dallas  419,  a  case  in 
which  a  judgment  was  rendered  against  the  State  of  Georgia  in  favor  of 
a  citizen  of  another  State  before  the  adoption  of  the  Eleventh  Amend- 
ment (see  supra)  the  State  refused  to  comply  with  the  judgment  and 
feeling  ran  very  high.  The  adoption  of  the  Eleventh  Amendment  was 
the  result. 


98         THE  AMERICAN  CONSTITUTION       §  43 

Virginia  separated  from  Virginia  it  agreed  to  pay  a  just 
proportion  of  Virginia's  public  debt.  By  judgment  of  the 
Supreme  Court  in  1915  West  Virginia  was  directed  to  pay 
$12,393,929.50,  but  for  several  years  failed  to  do  so.  Vir- 
ginia sought  a  writ  of  mandamus  directed  to  the  West 
Virginia  Legislature  directing  it  to  levy  the  necessary  tax  to 
pay  the  judgment.  The  court  concluded  that  a  State  can 
be  compelled  to  comply  with  a  judgment  rendered  against 
it ;  that  in  the  case  before  it  this  might  be  accomplished  by 
action  on  the  part  of  Congress,  or  by  appropriate  judicial 
action.  The  court,  however,  refused  to  say  what  that 
appropriate  judicial  action  would  be,  hoping  that  it  would 
not  be  necessary  to  take  any  action. x  As  a  matter  of  fact 
the  West  Virginia  Legislature  later  took  action  to  pay  the 
judgment  by  taxation. 

In  the  famous  case  oiMarburyv.  Madison2  the  Supreme 

Court  had  presented  to  it  the  question  whether  a  federal 

nt    •  jstatute  was  valid  which  invested  the  Supreme  Court  with 

authority  to  issue  a  writ  of  mandamus  to  federal  officers. 

/The  court  held  that  this  was  an  attempt  to  add  to  its 

original  jurisdiction  as  set  forth  in  the  Constitution,  and 

/that  this  was  beyond  the  power  of  Congress,  and  that  the 

/  statute  was,  therefore,  invalid.     From  the  date  of  the  case 

I  the  view  therein  expressed  has  been  accepted  as  settled,3 

though  at  an  earlier  day  a  contrary  view  seems  to  have 

prevailed. 4 

§43.  Appellate  Jurisdiction  of  the  Supreme  Court  of  the 
United  States.  In  all  cases  to  which  the  federal  judicial 
power  extends,5  and  of  which  the  Supreme  Court  is  not 
given  original  jurisdiction,  it  has  according  to  the  Con- 
stitution "appellate  jurisdiction  both  as  to  law  and  fact, 

'246  U.  S.  565.     See  T.  R.  Powell,  "Coercing  a  State  to   Pay  a 
Judgment:  Virginia  v.  West  Virginia,"  17  Mich.  L.  Rev.  I. 
a  (1803)  i  Cranch  137. 

3  See  Baltimore  &  O.  R.  R.  Co.  v.  Interstate  Com.  Com.  (1909)  215 
U.  S.  216. 

4  See  note  to  United  States  v.  Ferriera  (1851)  13  Howard  40,  53. 
s  See  the  next  section. 


§  43  THE  JUDICIARY  99 

with  such  exceptions  and  under  such  regulations  as  the 
Congress  shall  make."1  It  is  to  be  noticed  that  while  the 
appellate  jurisdiction  of  the  Supreme  Court  cannot  be 
enlarged  by  Congress,  that  body  may  fail  to  make  provision 
for  appeals  to  the  Supreme  Court,  or  may  take  away  from 
that  court  the  right  to  hear  appeals  which  had  previously 
vested  in  it. 2 

' '  In  all  cases  in  which  the  judgment  or  decree  of  the 
Circuit  Court  of  Appeals  is  not  made  final  by  the  pro- 
visions of  this  title,  there  shall  be  of  right  an  appeal  or  writ 
of  error  to  the  Supreme  Court  of  the  United  States  where 
the  matter  in  controversy  shall  exceed  one  thousand 
dollars,  besides  costs."3 

Since  decisions  of  the  Circuit  Court  of  Appeals  are  declared 
to  be  final  in  cases  of  diversity  of  citizenship,  in  patent, 
trade-mark  and  copyright  cases,  in  cases  under  the  revenue 
laws  and  criminal  laws,  and  in  admiralty  cases,4  this  appel- 
late jurisdiction  of  the  Supreme  Court  is  not  great.  The 
Circuit  Court  of  Appeals  may,  however,  certify  any  ques- 
tion that  it  desires  to  the  Supreme  Court, s  and  the  Supreme 
Court  may  by  certiorari  require  that  court  to  certify  any 
case  to  it. 6 

An  appeal  may  be  taken  to  the  Supreme  Court  from  the 
Court  of  Claims  whenever  the  judgment  is  adverse  to  the 
United  States,  or  by  the  plaintiff  when  the  amount  involved 
is  over  three  thousand  dollars,  or  when  his  claim  has  been 
declared  forfeited  for  fraud. 7  Appeals  may  be  taken  to  the 
Supreme  Court  of  the  United  States  from  the  Supreme 
Courts  of  Hawaii  and  Porto  Rico  under  the  same  circum- 
stances that  would  justify  a  case  going  up  from  the  highest 
court  of  a  State.  The  Supreme  Court  may  also  by  certiorari 

1  Art.  Ill,  sec.  2,  par.  2. 

a  A  striking  example  of  this  latter  power  is  seen  in  Ex  parte  McCardle 
(1868)  7  Wallace  506. 

3  Judicial  Code,  sec.  241.  <«  Ibid.,  sec.  128. 

s  Ibid.,  sec.  239.  6  Ibid.,  sec.  240. 

i  Judicial  Code,  sec.  242. 


ioo       THE  AMERICAN  CONSTITUTION       §  43 

direct  any  cases  to  be  certified  to  it  by  those  courts. z  There 
is  no  appeal  to  the  Supreme  Court  from  the  Supreme  Court 
of  the  Philippines,  but  the  Supreme  Court  may  by  certiorari 
direct  that  court  to  certify  any  case  to  it. 2  Any  final  judg- 
ment or  decree  in  the  Court  of  Appeals  of  the  District  of 
Columbia  may  be  reexamined  in  the  Supreme  Court  of  the 
United  States  upon  appeal  or  writ  of  error  under  the  same 
circumstances  which  would  allow  cases  from  the  District 
Courts  to  be  reexamined  (see  the  next  paragraph),  or  "in 
cases  in  which  the  validity  of  any  authority  exercised  under 
the  United  States,  or  the  existence  or  scope  of  any  power  or 
duty  of  an  officer  of  the  United  States  is  drawn  in  question," 
or  "in  cases  in  which  the  construction  of  any  law  of  the 
United  States  is  drawn  in  question  by  the  defendant. ' '  The 
Supreme  Court  may  also  by  writ  of  certiorari  direct  the 
Court  of  Appeals  of  the  District  of  Columbia  to  certify  any 
case  to  it.3  The  Supreme  Court  has,  besides,  appellate 
jurisdiction  in  bankruptcy  cases. 4 
The  Judicial  Code  further  provides : 

"Appeals  and  writs  of  error  may  be  taken  from  the 
District  Courts,  including  the  United  States  District 
Court  for  Hawaii  and  the  United  States  District  Court  for 
Porto  Rico,  direct  to  the  Supreme  Court  in  the  following 
cases :  In  any  case  in  which  the  jurisdiction  of  the  court  is 
in  issue,  in  which  case  the  question  of  jurisdiction  alone 
shall  be  certified  to  the  Supreme  Court  from  the  court 
below  for  decision;  from  the  final  sentences  and  decrees 
in  prize? causes;  in  any  case  that  involves  the  construction 
or  application  of  the  Constitution  of  the  United  States; 
in  any  case  in  which  the  constitutionality  of  any  law  of  the 
United  States  or  the  validity  or  construction  of  any  treaty 
made  under  its  authority  is  drawn  in  question ;  and  in  any 
case  in  which  the  constitution  or  law  of  a  State  is  claimed 

1  Judicial  Code,  sec.  246. 

a  Act  of  Sept.  6,  1916,  chap.  448,  sec.  5,  39  Stat.  726. 

3  Judicial  Code,  sees.  250  and  251. 

4  Judicial  Code,  sec.  252,  and  Act  of  Sept.  6,  1916,  chap.  448,  sec.  3, 
39  Stat.  726. 


§  43  THE  JUDICIARY  101 

to  be  in  contravention  of  the  Constitution  of  the  United 
States."1 

When  the  highest  court  of  a  State  in  which  a  decision  can 
be  had  has  decided  against  the  validity  of  a  treaty  or  statute 
of,  or  an  authority  exercised  under  the  United  States,  or  has 
decided  in  favor  of  a  statute  of,  or  an  authority  exercised 
under  a  State,  which  has  been  attacked  as  being  repugnant 
to  the  Constitution,  treaties  or  statutes  of  the  United 
States,  the  decision  may  be  reviewed  by  the  Supreme  Court 
upon  writ  of  error.  If  in  one  of  the  cases  just  mentioned 
the  decision  in  the  state  court  has  upheld  the  validity  of  the 
federal  treaty,  statute  or  authority,  which  has  been  called  in 
question,  or  has  held  invalid  the  state  statute  or  authority 
which  has  been  attacked,  the  Supreme  Court  may,  neverthe- 
less, review  the  decision  by  certiorari.  It  may  also  require 
a  cause  to  be  certified  to  it  "where  any  title,  right,  privilege, 
or  immunity  is  claimed  undej  the  Constitution,  or  any 
treaty  or  statute  of,  or.  commission  held  or  authority  exer- 
cised under  the  United  States,  and  the  decision  is  either  in 
favor  of  or  against"  such  title,  right,  privilege,  or  immunity 
set  up  by  either  party. 2 

The  Supreme  Court  exercises  a  jurisdiction  which  is  in  its 
nature  appellate  through  the  writs  of  prohibition3  and  man- 
damus,4 as  well  as  through  the  writ  of  certiorari,'^which  has 
already  been  considered.  The  power  to  issue  writs  of  ha- 
beas corpus  is  expressly  given  to  the  Supreme  Court  as  well  as 
to  the  District  Courts. 5  The  Supreme  Court  will  use  this 
power,  however,  only  in  its  appellate  character  after  a  per- 
son has  been  deprived  of  his  liberty  by  some  inferior  tribunal, 6 

1  Judicial  Code,  sec.  238,  and  see  sec.  247  for  appeals  and  writs  of 
error  from  the  district  court  for  the  district  of  Alaska. 

2  Judicial  Code,  sec.  237. 

3  Foster's  Federal  Practice  (5th  ed.),  sec.  456. 

4  Ibid.,  sec.  457. 

s  Rev.  Stat.,  sec.  751 ;  and  see  the  annotations  to  the  section  in  3  Fed. 
Stat.  Ann.  (2d  ed.),  428.  For  the  control  of  State  action  by  the  use  of 
the  writ  of  habeas  corpus  see  sec.  44. 

6 Ex  parte  Clarke  (1879)  100  U.  S.  399;  Ex  parte  Hung  Hang  (1883) 
1 08  U.  S.  552. 


102       THE  AMERICAN  CONSTITUTION       §  44 

except  in  cases  affecting  ambassadors,  other  public  ministers 
or  consuls,  and  those  to  which  a  State  is  a  party;  and,  unless 
special  circumstances  are  shown,  it  will  not  issue  the  writ 
where  application  might  be  made  to  a  lower  federal  court.  I 

§44.     Jurisdiction  of  District  Courts.     The  Constitution 
of  the  United  States  provides  as  follows2: 

"  The  judicial  power  shall  extend  to  all  cases  in  law  and 
equity  arising  under  f,h1'g  ^"^^"tirm,  thejaws  of  the 
tTnited  States,  andtreaties  made,  or  which  shalfbe  made* 
folder  their  auffinrjt.y;  f,o  ^11  ™*m  affecting  ambassadors, 
n-^her  public  ministers,  and  consuls;  to  all  cases  of  admir- 
alty  and  maritime  jurisdiction  :  to  controversies  to  which 
theJLTnitP-rt  fttat.aq  sjia.11  he  a  party;  tn^rnntrnvpTsies  he* 
tween  two  or  more  States,  .between  a  State  and  citizens 
o?  _anotherJataJLe,  betwe^-jaikens  of  different  States. 

between  citizens  of  the  same  gtate  dai'rmng  lands  und 

«  ' 

[ifferent  States,  and  between  a  State,  or_the 
citizens  thereof  and  foreign  states^  citizens  or 


For  the  purposes  of  this  provision  of  the  Constitution 
corporations  are  practically  considered  citizens  of  the  State 
of  their  incorporation,  under  the  conclusive  presumption 
that  all  of  the  stockholders  are  citizens  of  that  State.3 
Except  insofar  as  the  Constitution  gives  original  jurisdiction 
to  the  Supreme  Court,  which  subject  we  have  already  dealt 
with,  original  jurisdiction  under  the  federal  judicial  power 
is  exercised  entirely  by  the  District  Courts.  These  courts, 
however,  are  created  by  Congress,  not  by  the  Constitution, 
and  have  only  so  much  judicial  power  as  is  given  to  them  by 
Congress.  Their  jurisdiction  is  exclusive  of  that  of  the  state 
courts  in  cases  of  crimes  against  the  United  States4;  of 

1  Ex  parte  Mirzan  (1887)  119  U.  S.  584.  a  Art.  Ill,  sec.  2,  par.  I. 

3  Ohio  &  Miss.  R.  R.  Co.  v.  Wheeler  (1861)  I  Black  286.    Early  cases 
required  it  to  be  proved  that  all  of  the  members  of  the  corporation  were 
citizens  of  States  different  from  the  adverse  parties.     Bank  of  United 
States  v.  Deveaux  (1809)  5  Cranch  61. 

4  The  personal  guarantees  for  the  protection  of  those  accused  of 
crimes  contained  in  Article  III,  sec.  2,  par.  3,  and  in  Amendments  Five, 
Six  and  Eight  are  dealt  with  in  Chap.  15. 


§  44  THE  JUDICIARY  103 

suits  for  penalties  and  forfeitures  under  the  laws  of  the 
United  States;  of  civil  causes  of  admiralty  and  maritime 
jurisdiction  (suitors  retaining  any  common  law  remedy 
which  they  may  have);  of  seizures  under  the  laws  of  the 
United  States,  and  prize  cases;  of  patent  and  copyright 
cases;  of  bankruptcy  proceedings;  and  of  suits  against 
consuls  and  vice-consuls.1  The,  District  Courts  also  have 
jurisdiction,  but  not  exclusive  of  the  state  courts  in  the 
following  cases  among  others :  suits  by  the  United  States  or 
its  officers;  suits  involving  more  than  three  thousand 
dollars  arising  under  the  Constitution,  treaties  or  federal 
laws,  or  between  citizens  of  different  States,  or  between 
citizens  of  a  State  and  foreign  States  or  citizens ;  suits  under 
the  postal  laws;  suits  under  legislation  as  to  interstate  com- 
merce; suits  for  acts  done  under  the  laws  of  the  United 
States;  suits  against  national  banking  associations;  certain 
suits,  concurrently  with  the  Court  of  Claims,  against  the 
United  States;  and  suits  by  aliens  for  torts.2 

An  action  which  might  have  been  brought  in  a  District 
Court,  but  which  was  in  fact  brought  in  a  court  of  one  of 
the  States,  cannot  thereafter  be  removed  into  a  federal  court 
except  by  authority  of  a  federal  statute.3  There  is,  how- 
ever, no  doubt  that  statutory  provision  for  such  removal 
is  constitutional. 4  The  following  actions  may  be  removed 
from  a  state  court  to  a  District  Court :  any  civil  suit  arising 
under  the  Constitution,  laws  or  treaties  of  the  United  States 
of  which  District  Courts  have  original  jurisdiction ;  any  suit 
of  which  District  Courts  have  original  jurisdiction  may  be 
removed  by  the  defendant  if  he  is  a  non-resident  of  the 

1  Judicial  Code,  sec.  256. 

3  Ibid.,  sec.  24.  The  District  Courts  have  appellate  jurisdiction  from 
orders  of  the  United  States  commissioners  in  cases  arising  under  the 
Chinese  exclusion  laws,  and  in  cases  of  felonies  where  conviction  is  had 
before  the  commissioner  for  the  Yellowstone  National  Park.  Judicial 
Code,  sees.  25  and  26. 

3  Gold  Washing  &  W.  Co.  v.  Keyes  (1877)  96  U.  S.  199;  Kentucky  v. 
Powers  (1906)  201  U.  S.  i. 

<  Home  Life  Ins.  Co.  v.  Dunn  (1873)  19  Wallace  214;  Tennessee  v. 
Davis  (1879)  loo  U.  S.  257. 


104       THE  AMERICAN  CONSTITUTION       §  44 

State;  in  any  suit  of  which  District  Courts  have  original 
jurisdiction,  where  any  controversy  is  wholly  between 
citizens  of  different  States,  and  can  be  fully  determined 
between  them,  any  defendant  interested  in  such  controversy 
may  remove  it  to  the  District  Court ;  in  any  suit  between  a 
citizen  of  the  State  where  the  suit  is  brought  and  a  citizen 
of  another  State,  a  defendant,  being  a  citizen  of  another 
State,  may  remove  the  suit  into  the  District  Court  by  mak- 
ing it  appear  that  because  of  prejudice  or  local  feeling  he 
could  not  obtain  justice  in  the  courts  of  the  State1 ;  any  suit 
between  citizens  of  the  same  State  claiming  title  to  property 
under  grants  of  different  States,  where  the  value  of  the 
property  in  dispute  exceeds  three  thousand  dollars2*  any 
civil  suit  or  criminal  prosecution  where  the  defendant  is 
denied  the  equal  civil  rights  of  a  citizen  of  the  United 
States  secured  to  him  by  law,  or  any  such  proceedings 
against  any  officer  or  person  for  an  act  done  in  pursuance  of 
any  law  providing  for  equal  rights,  or  for  refusal  to  act  on  the 
ground  that  action  would  be  inconsistent  with  such  law3; 
any  civil  suit  or  criminal  prosecution  against  an  officer  or 
one  acting  under  him  on  account  of  any  act  done  under  a 
revenue  law  of  the  United  States,  or  against  a  person  holding 
property  derived  from  such  officer,  or  against  any  officer  of 
a  federal  court  for  an  act  done  in  his  official  capacity,  or 
against  an  officer  of  either  House  of  Congress  in  executing  an 
order  of  such  House4 ;  any  action  brought  by  an  alien  against 
a  civil  officer  of  the  United  States,  not  a  resident  of  the 
State  where  the  action  is  brought,  jurisdiction  having  been 
obtained  by  personal  service  in  the  State. s 


1  Judicial  Code,  sec.  28.  This  section  provides  that  no  action  brought 
in  a  state  court  under  the  Federal  Employers  Liability  Act  may  be 
removed  into  a  District  Court;  and  that  no  action  may  be  so  removed 
which  is  brought  for  delay,  loss  of  or  injury  to  property  under  section 
20  of  the  Interstate  Commerce  Act,  where  the  amount  in  controversy 
does  not  exceed  $3,000. 

3  Ibid.,  sec.  30. 

3  Ibid.,  sec.  31.  « Ibid.,  sec.  33. 

*Ibid.,  sec.  34. 


§  44  THE  JUDICIARY  105 

In  actions  in  personam  the  action  must  be  brought  in  the 
district  in  which  the  defendant  resides,  unless  there  are 
two  or  more  defendants  living  in  different  districts  in  the 
same  State,  in  which  it  may  be  brought  in  the  district  of  the 
residence  of  any  one.1  Original  judicial  process  in  civil 
suits  may  not  be  served  outside  of  the  district  in  which 
issued  except  in  the  case  just  noted,  when  it  may  be  served 
in  the  districts  where  the  other  defendants  reside,  and  except 
in  suits  of  a  local  nature,  when  it  may  issue  to  any  other 
district  in  the  State  where  defendants  reside. 2  Provision  is 
made  for  service  by  publication  in  actions  in  rem  when 
personal  service  cannot  be  made. 3 

The  District  Courts  are  given  power  "to  issue  all  writs 
not  specifically  provided  for  by  statute,"  which  may  be 
necessary  for  the  exercise  of  their  jurisdiction,  agreeably 
to  the  usages  and  principles  of  law. 4  Special  authorization 
is  given  to  District  Courts  as  well  as  to  the  Supreme  Court 
to  issue  writs  of  habeas  corpus. 5  This  power  may  even  be 
exercised  when  a  person  is  in  jail  in  custody  of  a  state  officer 
or  of  a  state  court  when  he 

"is  in  custody  for  an  act  done  or  omitted  in  pursuance  of  a 
law  of  the  United  States  or  of  an  order,  process  or  decree 
of  a  court  or  judge  thereof;  or  is  in  custody  in  violation 
of  the  Constitution  or  of  a  law  or  treaty  of  the  United 
States;  or,  being  a  subject  or  citizen  of  a  foreign  state, 
and  domiciled  therein,  is  in  custody  for  an  act  done  or 
omitted  under  any  alleged  right,  title,  authority,  privi- 
lege, protection  or  exemption  claimed  under  the  com- 
mission, or  order,  or  sanction  of  any  foreign  state,  or 
under  color  thereof,  the  validity  and  effect  whereof 


1  Judicial  Code,  sees.  51  and  52.    See  also  sec.  53. 

3  Ibid.,  sees.  51,  52,  and  54.    See  also  sec.  55. 

3  Ibid.,  sec.  57. 

*  Ibid.,  sec.  262.  As  to  the  use  of  the  various  writs  see  the  annota- 
tions to  this  section  in  5  Fed.  Stat.  Ann.  (2ded.),  929,  et  seq.;  Foster's 
Federal  Practice  (5th  ed.),  sees.  456  to  460. 

s  Judicial  Code,  sec.  751. 


io6       THE  AMERICAN  CONSTITUTION       §  44 

depend  upon  the  law  of  nations;  or   .    .    .  it  is  necessary 
to  bring  the  prisoner  into  court  to  testify."1 

Under  the  first  clause  quoted  above  it  was  held  In  re 
N eagle2  that  the  writ  might  issue,  not  only  when  the  person 
has  been  imprisoned  for  something  done  under  the  authority 
of  a  statute  of  the  United  States,  but  for  acts  done  under 
direction  of  the  President,  the  latter  himself  acting  in  giving 
the  directions  under  power  inferable  from  the  Constitution 
to  protect  the  members  of  the  federal  judiciary.  The  second 
clause  quoted  above,  allowing  the  writ  to  be  issued  when  a 
person  is  in  custody  "in  violation  of  the  Constitution  or  of 
a  law  or  treaty  of  the  United  States,"  is  far  the  most  in- 
clusive of  the  provisions  since  this  would  cover  any  case 
where  a  person  is  deprived  of  his  liberty  without  due  process, 
contrary  to  the  Fourteenth  Amendment. 3  The  third  clause 
quoted,  with  regard  to  citizens  and  subjects  of  foreign 
states,  grew  out  of  a  case  where  a  person  was  arrested  in 
New  York  charged  with  murder.  The  person  arrested  was  a 
British  soldier  who  had  made  an  attack  upon  a  ship  in  New 
York  waters,  during  the  Canadian  rebellion  of  1837,  and  the 
British  government  assumed  responsibility  for  his  acts,  and 
demanded  that  the  prisoner  be  released.  The  federal 
government  requested  the  New  York  authorities  to  release 
him,  but  they  refused  to  do  so,  and  the  federal  courts  found 
themselves  without  authority  to  free  him.4  The  issuing  of 
the  writ  is  discretionary  with  the  court,  and  where  the 
grounds  of  the  petition  are  the  infringement  of  personal 
rights  under  the  Constitution  or  laws  of  the  United  States 
the  court  will  ordinarily  allow  the  proceedings  to  go  forward 
in  the  state  court,  assuming  that  the  defendant's  rights  will 

1  Judicial  Code,  sec.  753.  State  courts  may  not  use  the  writ  to 
interfere  with  federal  authorities.  Ableman  v.  Booth  (1858)  21  Howard 
506;  United  States  v.  Xarble  (1871)  13  Wallace  397. 

a  (1890)  135  U.  S.  i.    See  the  case  discussed  in  sec.  31. 

3  For  a  consideration  of  the  due  process  clause  see  chaps.  28  to  32. 

4  People  v.  McLeod  (1841)   I   Hill  (N.  Y.)  377.      The  defendant 
was  later  acquitted  by  the  state  court.    See  In  re  N  eagle  (1890)  135 
U.S.  i. 


§  45  THE  JUDICIARY  107 

be  there  protected,  and,  if  they  are  not,  leaving  the  defen- 
dant to  his  remedy  of  having  his  case  reviewed  in  the 
Supreme  Court  by  writ  of  error. x 

The  Judicial  Code  declares2  that  "the  writ  of  injunction 
shall  not  be  granted  by  any  court  of  the  United  States  to 
stay  proceedings  in  any  court  of  a  State,  except  in  cases 
where  such  injunction  may  be  authorized  by  any  law  re- 
lating to  proceedings  in  bankruptcy."  However,  this  has 
been  interpreted  as  not  prohibiting  federal  courts  from 
issuing  such  injunctions  for  the  protection  of  their  own 
jurisdiction.  When  a  federal  court  takes  original  jurisdic- 
tion, or  where  a  suit  is  removed  into  a  federal  court  in  accor- 
dance with  the  federal  statute,  or  where  a  case  is  carried  up 
to  the  Supreme  Court  on  writ  of  error  from  a  state  court, 
the  federal  courts  may,  in  support  of  the  jurisdiction  so 
obtained,  issue  injunctions  to  state  courts  to  prevent  acts 
on  their  part  interfering  with  such  jurisdiction. 3 

§45.  Admiralty  and  Maritime  Jurisdiction.  After  the 
Declaration  of  Independence  the  various  States  established 
admiralty  courts.  The  Articles  of  Confederation4  gave 
Congress  power  to  establish  rules  for  deciding  the  legality 
of  captures  and  for  the  division  of  prizes.  They  also  gave  to 
Congress  authority  to  establish  a  court  of  final  appeal  in  all 
cases  of  capture,  and  Congress  acted  upon  the  authority. 
By  the  Constitution  the  judicial  power  of  the  federal  govern- 
ment extends  "to  all  cases  of  admiralty  and  maritime 

1  Ex  parte  Royall  Nos.  I  and  2  (1886)  117  U.  S.  241 ;  Ex  parte  Royall 
(1886)  117  U.  S.  254;  Urquhart  v.  Brown  (1907)  205  U.  S.  179.     And 
see  Drury  v.  Lewis  (1906)  200  U.  S.  i,  where  the  petitioner  claimed 
that  he  was  in  custody  for  an  act  done  under  federal  authority,  but 
was  left  to  be  dealt  with  by  the  state  court.     State  courts  cannot  by 
writ  of  habeas  corpus  take  a  person  from  the  custody  of  one  who  holds 
him  under  claim  of  federal  authority.     United  States  v.  Tarble  (1871) 
13  Wallace  397. 

2  Sec.  265. 

a  French,  Trustee  v.  Hay  (1874)  22  Wallace  250;  Deitzsch  ».  Huide- 
koper  (1880)  103  U.  S.  494;  Julian  v.  Central  Trust  Co.  (1904)  193  U.  S. 
93;  Ex  parte  Simon  (1905)  208  U.  S.  144. 

«  Art.  IX. 


io8       THE  AMERICAN  CONSTITUTION       §  45 

jurisdiction. ' ' x  This  is  held  to  exclude  the  state  courts  from 
entertaining  any  action  which  is  peculiar  to  admiralty 
jurisdiction,  such,  for  instance,  as  an  action  in  rem  against 
a  vessel.2  It  is  expressly  provided,  however,  by  federal 
statute  that  there  shall  be  saved  to  suitors  in  all  cases  ' '  the 
right  of  a  common  law  remedy,  where  the  common  law  is 
competent  to  give  it."3 

Since  the  federal  courts  are  vested  with  exclusive  ad- 
miralty and  maritime  jurisdiction,  and  Congress  is  given 
power  to  establish  the  federal  courts  below  the  Supreme 
Court,  it  follows  that  Congress  may  determine  the  law  to 
be  administered  in  these  courts  within  the  boundaries  fixed 
by  the  Constitution.  In  legislating  in  this  field  Congress 
does  not  do  so  by  force  of  the  commerce  clause,  but  by  force 
of  the  judiciary  article.4  But  the  determination  of  the 
extent  of  the  admiralty  and  maritime  jurisdiction  is  for  the 
judiciary. 5 

Rather   anomalously   it  has  been  held  that  the  state 

1  Art.  Ill,  sec.  2,  par.  i.  The  Supreme  Court  has  described  the  ad- 
miralty and  maritime  jurisdiction  as  follows: 

"Principal  subjects  of  admiralty  jurisdiction  are  maritime  contracts 
and  maritime  torts,  including  captures  jure  belli,  and  seizure  on  water  for 
municipal  and  revenue  forfeiture. 

"(i)  Contracts,  claims,  or  service,  purely  maritime,  and  touching 
rights  and  duties  appertaining  to  commerce  and  navigation,  are  cogniz- 
able in  admiralty. 

"(2)  Torts  or  injuries  committed  on  navigable  waters,  of  a  civil 
nature,  are  also  cognizable  in  the  admiralty  courts. 

"Jurisdiction  in  the  former  case  depends  upon  the  nature  of  the  con- 
tract, but  in  the  latter  it  depends  entirely  upon  locality.  Mistakes  need 
not  be  made  if  these  rules  are  observed ;  but  contracts  to  be  performed  on 
waters  not  navigable,  are  not  maritime  any  more  than  those  made  to  be 
performed  on  land.  Nor  are  torts  cognizable  in  the  admiralty  unless 
committed  on  waters  within  the  admiralty  and  maritime  jurisdiction,  as 
defined  by  law."  The  Belfast  (1868)  7  Wallace  624, 637. 

a  The  Moses  Taylor  (1866)  4  Wallace  41 1. 

s  Judicial  Code,  sec.  256. 

« In  re  Garnet t  (1891)  141  U.  S.  I.  For  a  discussion  of  the  differences 
of  legislative  power  under  the  commerce  clause  and  the  judiciary  article 
see  The  Genesee  Chief  (1851)  12  Howard  443. 

5  The  Lottawana  (1874)  21  Wallace  558. 


§  45  THE  JUDICIARY  109 

legislatures  may  provide  for  liens  for  the  enforcement  of 
maritime  contracts  which  will  be  given  effect  in  the  federal 
courts,  though  unenforceable  in  the  courts  of  the  States.1 
It  is  suggested  in  the  case  just  cited  that  the  practice  grew 
up  from  the  fact  that  before  the  adoption  of  the  Constitu- 
tion the  state  courts  exercised  admiralty  jurisdiction,  and 
that  the  early  federal  judges,  who  had  frequently  sat  pre- 
viously in  the  state  courts,  continued  without  much  thought 
to  apply  the  law  which  they  had  applied  in  the  state 
tribunals. 

According  to  the  English  law  the  admiralty  jurisdiction 
was  confined  to  the  high  seas  or  to  streams  in  which  the 
tide  ebbed  and  flowed,  and  following  these  precedents  the 
same  doctrine  was  applied  in  the  early  cases  in  this  country. a 
But  the  Supreme  Court  later  changed  its  view,  overruling 
the  earlier  cases,  and  declaring  that  in  the  case  of  "public 
navigable  water,  on  which  commerce  is  carried  on  between 
different  States  and  nations,  the  reason  for  the  jurisdiction 
is  precisely  the  same  "  as  on  tide  water. 3  Upon  this  doctrine 
the  court  held  that  the  Great  Lakes  are  within  the  admiralty 
jurisdiction.  The  court  points  out  that  in  England  navi- 
gable water  and  tide  water  are  synonymous,  which  accounts 
for  the  doctrine  there  established.  In  this  country,  however, 
that  is  not  true,  and  the  uniformity  contemplated  by  the 
Constitution  is  better  effected  by  abandoning  that  doctrine 
for  a  more  logical  one.  The  fact  that  a  tort  is  committed  on 
water,  within  the  territorial  limits  of  a  State,  or  that  a  con- 
tract of  water  carriage  is  to  be  entirely  performed  within 
the  limits  of  a  State,  does  not  take  such  transactions  out  of 
the  admiralty  jurisdiction. 4 

1  The  Lottawana  (1874)  21  Wallace  558. 

aThe  Thomas  Jefferson  (1825)  10  Wheaton  428;  Orleans  v.  Phoebus 
(1837)  ii  Peters  175. 

3  The  Genesee  Chief  (1851)  12  Howard  443.  This  doctrine  has  been 
extended  to  canals,  Ex  parte  Boyer  (1884)  109  U.  S.  629;  The  Robert  W. 
Parsons  (1903)  191  U.  S.  17.  A  State,  however,  is  not  ousted  of  its  gen- 
eral jurisdiction  over  such  water  within  its  borders.  United  States  v. 
Bevans  (1818)  3  Wheaton  336. 

-» Waring  v.  Clark  (1847)  5  Ho  ward  441 ;  The  Belfast  (1868)  7  Wallace  624. 


i  io       THE  AMERICAN  CONSTITUTION       §46 

§46.  Jurisdiction  of  Circuit  Courts  of  Appeals.  The 
Circuit  Courts  of  Appeals  have  no  original  jurisdiction. 
They  have  appellate  jurisdiction  of  suits  brought  in  the 
District  Courts  (including  those  for  Hawaii  and  Porto  Rico) 
in  all  cases  except  those  in  which  appeals  and  writs  of  error 
may  be  taken  directly  to  the  Supreme  Court. x  The  judg- 
ments and  decrees  of  the  Circuit  Courts  of  Appeals  are 
final 

"in  all  cases  in  which  the  jurisdiction  is  dependent  en- 
tirely upon  the  opposite  parties  to  the  suit  or  controversy 
being  aliens  and  citizens  of  the  United  States  or  citizens 
of  different  States;  also  in  all  cases  arising  under  the 
patent  laws,  under  the  trade-mark  laws,  under  the  copy- 
right laws,  under  the  revenue  laws,  and  under  the  criminal 
laws,  and  in  admiralty  cases," 

except  where  a  Circuit  Court  of  Appeals  certifies  a  question 
to  the  Supreme  Court,  or  where  the  Supreme  Court  chooses 
to  review  a  decision  of  the  Circuit  Court  of  Appeals  by  writ 
of  certiorari.2  Appeals  may  also  be  taken  to  the  Circuit 
Courts  of  Appeals  from  interlocutory  orders  in  proceedings 
for  injunctions  and  the  appointment  of  receivers.3  The 
Circuit  Courts  of  Appeals  have  final  appellate  jurisdiction4 
in  all  cases  under  the  Bankruptcy  Act,  and  under  the  federal 
statutes  known  as  the  Employers'  Liability  Act, s  the  Hours 
of  Service  Act, 6  the  Ash  Pan  Act, 7  and  the  Safety  Appliance 
Act. 8  Appeals  from  the  United  States  Court  for  China  are 
taken  to  the  Circuit  Court  of  Appeals  for  the  ninth  circuit, 
and  the  same  rules  as  to  finality  of  judgments  apply  as  in 
cases  going  up  to  the  Circuit  Courts  of  Appeals  from  the 

1  For  the  appellate  jurisdiction  of  the  Supreme  Court,  see  sec.  43. 
a  Judicial  Code,  sec.  128.    With  regard  to  review  by  the  Supreme 
Court  under  the  circumstances  last  named,  see  sec.  43. 
3  Judicial  Code,  sec.  129. 
*  Act  of  Sept.  6,  1916,  39  Stat.  726. 
s  Act  of  Apr.  22,  1908,  35  Stat.  65. 

6  Act  of  March  4, 1907,  34  Stat.  1415. 

7  Act  of  May  30,  1908,  35  Stat.  476. 

8  Act  of  March  2,  1893,  27  Stat.  531. 


§47  THE  JUDICIARY  in 

District  Courts.1  Appeals  from  the  District  Court  of 
Alaska  lie  to  the  Circuit  Court  of  Appeals  for  the  ninth 
circuit,  when  an  appeal  will  not  lie  direct  to  the  Supreme 
Court,2  in  all  criminal  cases,  and  in  civil  cases  involving 
more  than  $500,  and  judgment  of  the  Circuit  Court  of 
Appeals  in  such  a  case  is  final,  except  that  it  may  in  its 
discretion  certify  any  question  involved  in  such  a  case  to 
the  Supreme  Court.3 

§47.  Jurisdiction  of  the  Court  of  Claims.*  As  we  have 
seen  the  United  States  cannot  be  sued  except  with  its  con- 
sent, but  in  1855  the  federal  government  established  the 
Court  of  Claims,  with  jurisdiction  of  certain  classes  of  claims 
against  the  United  States. s  The  court  is  given  jurisdiction  of 

"all  claims  (except  for  pensions)  founded  upon  the  Con- 
stitution of  the  United  States6  or  any  law  of  Congress,7 
upon  any  regulation  of  an  Executive  Department, 8  upon 
any  contract,  express  or  implied,  with  the  Government 
of  the  United  States,9  or  for  damages,  liquidated  or  un- 
liquidated, in  cases  not  sounding  in  tort,10  in  respect  of 
which  claims  the  party  would  be  entitled  to  redress 
against  the  United  States  either  in  a  court  of  law,  equity 
or  admiralty  if  the  United  States  were  suable."11 

1  Act  of  June  30,  1906,  34  Stat.  814. 

a  When  such  appeal  will  lie,  see  sec.  43. 

3  Judicial  Code,  sec.  134.  « Sec.  42. 

s  As  we  have  seen  just  above  the  District  Courts  are  given  concurrent 
jurisdiction  in  certain  cases  of  claims  against  the  United  States. 

6  Storall,  Admin,  v.  United  States  (1891)  26  Ct.  Cl.  226. 

i  Foster  v.  United  States  (1897)  32  Ct.  Cl.  184,  contains  a  full  classifi- 
cation of  the  cases  falling  under  this  clause. 

8  Maddux  v.  United  States  (1885)  20  Ct.  Cl.  199;  United  States  v. 
Fitch  (1895)  70  Fed.  578. 

'Salomon  v.  United  States  (1873)  19  Wallace  17;  United  States  v. 
Great  Falls  Mfg.  Co.  (1884)  112  U.  S.  645;  Coleman  v.  United  States 
(1894)  152  U.  S.  96;  United  States  v.  Edmondston  (1901)  181  U.  S.  500. 

1  °  Schillinger  v.  United  States  (1894)  155  U.  S.  163;  Juragua  Iron  Co. 
v.  United  States  (1909)  212  U.  S.  297;  Basso  v.  United  States  (1916)  239 
U.  S.  602. 

1  '  Judicial  Code,  sec.  145.  In  such  proceedings  the  court  is  authorized 
to  consider  set-offs  and  counterclaims  on  the  part  of  the  United  States. 


112       THE  AMERICAN  CONSTITUTION       §48 

The  court  may  also  take  jurisdiction  of  claims  of  disbursing 
officers  of  the  United  States,  or  their  personal  representa- 
tives for  relief  from  responsibility  for  loss,  while  in  line  of 
duty,  of  government  funds,  vouchers,  records  or  papers.1 
A  debtor  of  the  United  States  who  has  applied  to  the  proper 
department  to  have  his  indebtedness  adjusted  and  has 
gotten  no  such  adjustment  within  three  years  after  his 
application,  may  bring  the  matter  before  the  Court  of 
Claims  for  final  adjustment,  with  right  of  appeal  to  the 
Supreme  Court  as  in  other  cases. 2  The  head  of  any  execu- 
tive department  may  refer  to  the  court  any  claim  or  matter 
pending  before  the  department,  which  involves  controverted 
questions  of  fact  or  law,  and  the  court  shall  report  back  its 
findings  and  conclusions.  But  if  the  claimant  consents  to 
the  reference  to  the  court,  or  if  the  facts  are  such  as  to  bring 
the  claim  within  the  court's  jurisdiction,  it  may  render  a 
final  judgment.  Upon  the  certificate  of  any  auditor  or  the 
Comptroller  of  the  Treasury  the  Secretary  of  the  Treasury 
may  refer  to  the  court  for  final  adjudication  any  claim  of 
which  it  might  have  taken  jurisdiction  upon  the  voluntary 
action  of  the  claimant. 3  When  any  bill  is  pending  in  either 
House  of  Congress  for  the  payment  of  any  claim,  or  for  a 
grant,  gift  or  bounty  to  any  person,  that  House  may  refer 
the  matter  to  the  Court  of  Claims  for  investigation  and 
report;  but  if  the  subject-matter  of  the  bill  is  such  as  to 
bring  the  claim  within  the  jurisdiction  of  the  court,  it  may 
proceed  to  render  final  judgment. 4  Claims  growing  out  of 
treaties  are  not  cognizable  by  the  Court  of  Claims. s  Aliens 
who  are  subjects  of  any  government  which  allows  United 
States  citizens  to  prosecute  claims  against  such  government 
in  its  courts,  may  prosecute  in  the  Court  of  Claims  any 
claim  against  the  United  States  which  falls  within  the  juris- 
diction of  the  court. 6 

§48.     Is  There  a  Common  Law  of  the  United  States?    After 
some  conflicting  decisions  in  the  lower  federal  courts  it  was 

1  Judicial  Code,  sec.  145.  «  Ibid.,  sec.  151. 

2  Ibid.,  sec.  180.  5  Ibid.,  sec.  153. 

3  Ibid.,  sec.  148.  6  Ibid.,  sec.  155- 


§48  THE  JUDICIARY  113 

decided  by  the  Supreme  Court  that  there  is  no  criminal 
common  law  of  the  United  States.1  The  arguments  in 
support  of  this  position  are  that  there  was  no  common  law 
of  the  States  as  a  unit  which  could  be  held  to  persist  after 
the  formation  of  the  new  government,  and  that  all  of  the 
power  of  the  judiciary  is  to  be  found  in  the  Constitution, 
which  confers  no  such  jurisdiction.  There  is  as  clearly  no 
general  common  law  of  the  United  States  on  the  civil  side 
so  as  to  give  a  person  a  right  to  bring  a  contract  or  a  tort 
action,  for  which  he  would  have  a  remedy  at  common  law, 
in  a  federal  court,  on  the  ground  that  it  is  a  case  arising 
''under  the  laws  of  the  United  States."  But  when  parties 
get  into  a  federal  court  on  the  ground  of  diversity  of  citizen- 
ship what  law  is  to  govern?  By  the  Judiciary  Act  of  1789, 
which  is  still  on  the  statute  book, 2  it  is  declared  that, 

"The  laws  of  the  several  States,  except  where  the 
Constitution,  treaties,  or  statutes  of  the  United  States 
otherwise  require  or  provide,  shall  be  regarded  as  rules  of 
decision  in  trials  at  common  law,  in  the  courts  of  the 
United  States,  in  cases  where  they  apply." 

In  an  early  case  brought  to  recover  on  certain  bills  of  ex- 
change, we  find  this  brief  statement  by  the  court3:  "We 
are  unanimously  of  opinion,  that  under  the  laws,  and  the 
practical  construction  of  the  courts  of  Rhode  Island,  the 
judgment  of  the  Circuit  Court  ought  to  be  affirmed."  And 
appended  is  this  note:  "Chase,  Justice,  observed  that  he 
concurred  in  the  opinion  of  the  court;  but  that  it  was  on 
common  law  principles,  and  not  in  compliance  with 
the  laws  and  practice  of  the  State."  In  the  early  cases, 
the  Supreme  Court  did  repeatedly  hold  itself  bound  by  the 
decisions  of  the  highest  courts  of  the  States  as  to  what  the 
law  of  those  States  was.4  Practically  all  of  these  cases, 

1  See  sec.  133. 
8  Judicial  Code,  sec.  721. 
a  Brown  v.  Van  Braam  (1797)  3  Dallas  344. 

«  See  the  cases  collected  in  5  Fed.  Stat.  Ann.  1 128,  and  in  Story  on  the 
Constitution  (5th  ed.),  sec.  1795,  note  (b). 


ii4       THE  AMERICAN  CONSTITUTION       §48 

however,  will  be  found  to  involve  the  construction  of  state 
legislation,  or  the  determination  of  the  law  with  regard  to 
real  estate.  In  the  case  of  Jackson  v.  Chew'1  the  court  said 
that, 

"whether  these  rules  of  land  title  grow  out  of  the  statutes 
of  a  State,  or  principles  of  the  common  law  adopted  and 
applied  to  such  titles,  can  make  no  difference.  There  is 
the  same  necessity  and  fitness  in  preserving  uniformity 
of  decisions  in  the  one  case  as  in  the  other." 

The  court  in  one  case2  went  so  far  as  to  overrule  a  previous 
decision  of  its  own  because  the  highest  court  of  the  State 
had  intermediately  put  an  interpretation  upon  a  state 
statute  which  was  at  variance  with  the  interpretation  pre- 
viously put  upon  it  by  that  court  and  by  the  Supreme  Court. 
The  arguments  in  this  and  others  of  the  earlier  cases  lay 
stress  upon  the  friction  and  uncertainty  which  would 
result  from  variant  interpretations  of  the  state  laws  by 
the  courts  of  a  State  and  by  the  federal  courts  sitting  in  the 
State. 

This  argument  would  seem  to  apply  not  only  to  the  inter- 
pretation to  be  put  upon  State  statutes,  and  to  the  common 
law  of  the  States  with  regard  to  real  property,  but  also  to 
the  common  law  of  the  States  governing  commercial  trans- 
actions and  the  liability  for  torts.  However,  in  Swift  v. 
Tyson3  the  Supreme  Court,  speaking  through  Justice  Story, 
refused  to  recognize  the  binding  effect  of  the  decisions  of 
state  courts  as  to  the  common  law  in  the  field  of  commercial 
transactions.  That  case  was  an  action  on  commercial  paper, 
and  the  question  was  whether  the  plaintiff  was  a  holder  in 
due  course,  having  taken  the  instrument  for  a  preexisting 
debt.  Although  the  Supreme  Court  did  not  think  that  the 
highest  court  of  New  York  had  settled  the  question,  yet, 
for  the  purposes  of  the  decision,  it  assumed  that  it  had  been 
decided  by  the  New  York  court  that  taking  in  payment  of 

1  (1827)  12  Wheaton  153,  168. 

a  Green  v.  Neal  (1832)  6  Peters  291. 

a  (1842)  1 6  Peters  I. 


§48  THE  JUDICIARY  115 

a  preexisting  debt  would  not  make  one  a  holder  for  value. 
The  court  then  proceeded1 : 

".  .  .  It  is  observable  that  the  courts  of  New  York  do 
not  found  their  decisions  upon  this  point  upon  any  local 
statute,  or  positive,  fixed  or  ancient  usage;  but  they 
deduce  the  doctrine  from  the  general  principles  of  com- 
mercial law.  It  is,  however,  contended,  that  the  thirty- 
fourth  section  of  the  Judiciary  Act  of  1789,  ch.  20, 
furnishes  a  rule  obligatory  upon  this  court  to  follow  the 
decisions  of  the  state  tribunals  in  all  cases  to  which  they 
apply.  That  section  provides  'that  the  laws  of  the 
several  States,  except  where  the  Constitution,  treaties, 
or  statutes  of  the  United  States  shall  otherwise  require  or 
provide,  shall  be  regarded  as  rules  of  decision  in  trials  at 
common  law  in  the  courts  of  the  United  States,  in  cases 
where  they  apply.'  In  order  to  maintain  the  argument, 
it  is  essential,  therefore,  to  hold  that  the  word  'laws,' 
in  this  section  includes  within  the  scope  of  its  meaning  the 
decisions  of  the  local  tribunals.  In  the  ordinary  use  of 
language  it  will  hardly  be  contended  that  the  decisions 
of  courts  constitute  laws.  They  are,  at  most,  only  evi- 
dence of  what  the  laws  are  and  are  not  of  themselves  laws. 
They  are  often  reexamined,  reversed,  and  qualified  by 
the  courts  themselves,  whenever  they  are  found  to  be 
either  defective,  or  ill-founded  or  otherwise  incorrect. 
The  laws  of  a  State  are  more  usually  understood  to  mean 
the  rules  and  enactments  promulgated  by  the  legislative 
authority  thereof,  or  long  established  local  customs  having 
the  force  of  laws.  In  all  the  various  cases,  which  have 
hitherto  come  before  us  for  decision,  this  court  have 
uniformly  supposed  that  the  true  interpretation  of  the 
thirty -fourth  section  limited  its  application  to  state  laws 
strictly  local,  that  is  to  say,  to  the  positive  statutes  of  the 
State,  and  the  construction  thereof  adopted  by  the  local 
tribunals,  and  to  rights  and  titles  to  things  having  a 
permanent  locality,  such  as  the  rights  and  titles  to  real 

'Swift  v.  Tyson  (1842)  16  Peters  I,  18. 


Ii6       THE  AMERICAN  CONSTITUTION       §48 

estate,  and  other  matters  immovable  and  intra-territorial 
in  their  nature  and  character.  It  never  has  been  supposed 
by  us,  that  the  section  did  apply,  or  was  designed  to  apply, 
to  questions  of  a  more  general  nature,  not  at  all  depen- 
dent upon  local  statutes  or  local  usages  of  a  fixed  and 
permanent  operation,  as,  for  example,  to  the  construction 
of  ordinary  contracts  or  other  written  instruments,  and 
especially  to  questions  of  general  commercial  law,  where 
the  state  tribunals  are  called  upon  to  perform  the  like 
functions  as  ourselves,  that  is,  to  ascertain  upon  general 
reasoning,  and  legal  analogies,  what  is  the  true  exposition 
of  the  contract  or  instrument,  or  what  is  the  just  rule 
furnished  by  the  principles  of  commercial  law  to  govern 
the  case.  And  we  have  not  now  the  slightest  difficulty 
in  holding  that  this  section,  upon  its  true  intendment  and 
construction,  is  strictly  limited  to  local  statutes  and  local 
usages  of  the  character  before  stated,  and  does  not  extend 
to  contracts  and  other  instruments  of  a  commercial 
nature,  the  true  interpretation  and  effect  whereof  are  to 
be  sought  not  in  the  decisions  of  the  local  tribunals,  but 
in  the  general  principles  and  doctrines  of  commercial 
jurisprudence.  Undoubtedly,  the  decisions  of  the  local 
tribunals  upon  such  subjects  are  entitled  to  and  will 
receive  the  most  deliberate  attention  and  respect  of  this 
court;  but  they  cannot  furnish  positive  rules,  or  con- 
clusive authority,  by  which  our  own  judgments  are  to  be 
bound  up  and  governed." 

Although  the  doctrine  of  this  case  has  been  often  criti- 
cized, and  state  courts  have  chafed  under  its  operation,  it 
has  been  consistently  followed  by  the  Supreme  Court,  and 
has  been  applied  not  only  to  negotiable  paper  and  to  con- 
tracts and  commercial  transactions  generally,  but  also  to 
liability  for  negligence  and  other  torts,  and  to  all  questions 
growing  out  of  the  relationship  of  master  and  servant.1 
If  the  state  courts  felt  an  obligation  to  follow  the  decisions 

1  See  the  excellent  and  exhaustive  treatment  of  this  subject,  and  col- 
lection of  authorities  in  Black,  Law  of  Judicial  Precedents,  chap.  16. 


§49  THE  JUDICIARY  117 

of  the  federal  tribunals  in  these  fields,  the  federal  practice 
might  lead  to  uniformity  in  the  common  law  of  the  States, 
but  since  the  state  courts  have  felt  constrained  by  no  such 
obligation,  the  result  has  rather  been  to  add  to  the  confusion 
by  having  different  rules  of  common  law  administered 
within  the  States  by  the  state  and  federal  courts. 

§49.  Judicial  Review  of  Legislation.  The  "Virginia 
Plan, "  introduced  into  the  Constitutional  Convention  by 
Edmund  Randolph,  included  a  proposition  for  a  council 
of  revision,  to  consist  of  the  national  executive  and  judiciary, 
who  should  exercise  a  qualified  veto  on  national  legislation. x 
This,  as  we  have  seen, 2  was  rejected  in  favor  of  a  veto  by  the 
President.  No  express  provision  was  proposed  in  the  Con- 
vention for  the  review  by  the  judiciary  of  federal  legislation, 
but  it  is  quite  clear  from  different  parts  of  the  debates  in 
the  Convention,  and  from  later  expressions  of  opinion  by 
members  of  that  body,  that  the  framers  of  the  Constitution 
believed  that  the  judiciary  would  have  the  power  to  declare 
void  any  federal  legislation  which  might  be  in  conflict  with 
the  Constitution.3  Hamilton,  in  supporting  the  Con- 
stitution, deals  at  length  with  this  subject,  and  his  state- 
ments are  clear  and  unequivocal.  He  says  in  part4: 

"  The  complete  independence  of  the  courts  of  justice  is 
peculiarly  essential  in  a  limited  Constitution.  By  a 
limited  Constitution,  I  understand  one  which  contains 
certain  specified  exceptions  to  the  legislative  authority; 
such,  for  instance,  as  that  it  shall  pass  no  bills  of  attainder, 
no  ex  post  facto  laws,  and  the  like.  Limitations  of  this 
kind  can  be  preserved  in  practice  no  other  way  than 
through  the  medium  of  courts  of  justice,  whose  duty  it 
must  be  to  declare  all  acts  contrary  to  the  manifest  tenor 
of  the  Constitution  void. 


1  Farrand,  The  Records  of  the  Federal  Convention,  vol.  i,  p.  21. 
a  Sec.  37. 

a  For  an  interesting  and  convincing  presentation  of  this  material  see 
Beard,  The  Supreme  Court  and  the  Constitution,  chap.  2. 
*  The  Federalist,  No.  78. 


ii8       THE  AMERICAN  CONSTITUTION       §49 

"There  is  no  position  which  depends  on  clearer  princi- 
ples, than  that  every  act  of  a  delegated  authority,  con- 
trary to  the  tenor  of  the  commission  under  which  it  is 
exercised,  is  void.  No  legislative  act,  therefore,  contrary 
to  the  Constitution  can  be  valid. 


"...  The  interpretation  of  the  laws  is  the  proper  and 
peculiar  province  of  the  courts.  A  Constitution  is,  in 
fact,  and  must  be  regarded  by  the  judges,  as  a  fundamen- 
tal law.  It,  therefore,  belongs  to  them  to  ascertain  its 
meaning,  as  well  as  the  meaning  of  any  particular  act 
proceeding  from  the  legislative  body.  If  there  should 
happen  to  be  an  irreconcilable  variance  between  the  two, 
that  which  has  the  superior  obligation  and  validity  ought, 
of  course,  to  be  preferred;  or,  in  other  words,  the  Con- 
stitution ought  to  be  preferred  to  the  statute,  the  inten- 
tion of  the  people  to  the  intention  of  their  agents." 

In  1803  the  case  of  Marbury  v.  Madison1  presented  to  the 
Supreme  Court  an  opportunity  to  pronounce  an  opinion 
upon  the  powers  of  the  federal  judiciary  with  regard  to  un- 
constitutional federal  legislation,  which  was  at  once 
grasped  by  Chief  Justice  Marshall.  He  declared  that  the 
judiciary  may  pronounce  a  federal  statute  unconstitu- 
tional, and,  therefore,  ineffective,  and  all  the  other  members 
of  the  court  agreed  with  him.  His  opinion  on  this  point 
covers  only  a  little  more  than  four  pages,  but  it  presents  in  a 
masterly  and  lucid  manner  the  arguments  in  support  of  his 
conclusion.  He  points  out  first  that  the  Constitution  of  the 
United  States  not  only  grants  certain  powers  of  government 
but  also  establishes  certain  express  limitations  upon  the 
government.  "To  what  purpose,"  he  asks,  "are  powers 
limited,  and  to  what  purpose  is  that  limitation  committed 
to  writing,  if  these  limits  may,  at  any  time,  be  passed  by 
those  intended  to  be  restrained? "  Either  the  Constitution 

1  i  Cranch  137.  For  an  interesting  sketch  of  the  political  background 
of  this  case  see  Beveridge's  Life  of  John  Marshall,  vol.  iii,  chaps  2.  and  3. 


§49  THE  JUDICIARY  119 

controls  the  Legislature  or  it  does  not.  "If  the  former 
part  of  the  alternative  be  true,  then  a  legislative  act  con- 
trary to  the  Constitution  is  not  law:  if  the  latter  part  be 
true,  then  written  constitutions  are  absurd  attempts,  on  the 
part  of  the  people,  to  limit  a  power  in  its  own  nature  il- 
limitable." The  province  of  the  judiciary  is  to  interpret 
and  apply  the  law,  and  if  two  laws  conflict  it  is  the  duty  of  a 
court  to  decide  which  one  shall  be  given  effect.  So  if  the 
Constitution  and  a  law  conflict,  a  court  must  apply  the  law 
and  ignore  the  Constitution,  or  apply  the  Constitution  and 
hold  the  statute  invalid.  If  it  were  to  follow  the  former 
course  the  power  of  Congress,  which  the  Constitution  ex- 
pressly limits,  would  nevertheless  be  limitless,  and  the  clear 
intention  of  the  people  would  be  frustrated.  But  Marshall 
found  in  the  Constitution  itself  further  support  for  the 
conclusion  which  he  had  reached.  In  the  first  place  it  is 
provided  that  * '  the  judicial  power  shall  extend  to  all  cases, 
in  law  and  equity,  arising  under  the  Constitution."1  In 
the  second  place  it  is  directed  that  judicial  officers  shall  "be 
bound  by  oath  or  affirmation  to  support  this  Constitution." 2 
In  the  third  place  the  fundamental  law  declares  that3  "this 
Constitution,  and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof,  .  .  .  shall  be  the  supreme 
law  of  the  land."4 

The  opinion  of  Chief  Justice  Marshall  in  Marbury  v. 
Madison  did  not  lay  down  a  doctrine  which  was  new  in  the 
judicial  annals  of  this  country.  In  a  number  of  States  the 
state  courts  had,  both  before  and  after  the  adoption  of  the 
Federal  Constitution,  held  state  statutes  invalid  which  were 

1  Art.  Ill,  sec.  2,  par.  i. 

2  Art  VI,  par.  3. 

3  Art.  VI,  par.  2. 

4  If  a  statute  is  constitutional  in  part  and  unconstitutional  in  part 
and  the  two  parts  are  separable  and  independent,  so  that  it  may  fairly 
be  presumed  that  the  legislature  would  have  part  stand  though  the 
other  part  fell,  the  constitutional  part  will  be  given  effect.    Otherwise  the 
whole  statute  will  be  declared  invalid.    Pollock  v.  Farmer's  L.  &  T.  Co. 
(1895)  158  U.  S.  601;  Employers  Liability  Cases  (1908)  207  U.  S.  463; 
El  Paso  &  N.  E.  Ry.  Co.  v.  Gutienez  (1909)  215  U.  S.  87. 


120       THE  AMERICAN  CONSTITUTION       §  49 

in  conflict  with  the  State  constitutions.1  In  1796  a  case 
was  brought  before  the  Supreme  Court  in  which  a  federal 
statute  was  attacked  as  unconstitutional.  Upon  careful 
consideration  the  statute  was  upheld,  but  no  doubt  was 
expressed  of  the  court's  power  to  pass  upon  the  question  of 
constitutionality.2  In  1792  Congress  passed  an  act  for  the 
relief  of  certain  classes  of  pension  claimants,  and  directed 
the  Circuit  Courts  to  hear  such  claims,  giving  a  power  of 
review  to  the  Secretary  of  War  and  to  Congress.  The 
Circuit  Courts  for  the  districts  of  New  York,  Pennsylvania, 
and  North  Carolina,  in  which  courts  sat  at  the  time  as  Cir- 
cuit Judges  five  out  of  the  six  Justices  of  the  Supreme  Court, 
declared  the  statute  to  be  an  unconstitutional  attempt  to 
impose  non- judicial  functions  upon  the  courts, 3  and  that 
they  could  not,  therefore,  in  their  judicial  capacity  hear  the 
claims  presented.  The  members  of  one  of  the  courts  con- 
sented, however,  to  sit  as  commissioners  for  the  purposes  of 
the  act.4  A  writ  of  mandamus  was  sought  from  the 
Supreme  Court  to  compel  the  Circuit  Courts  to  act,  but 
before  the  final  hearing  on  this  application  the  statute  in 
question  was  repealed.5  In  1795  Justice  Patterson  of  the 
Supreme  Court,  while  sitting  as  Circuit  Judge,  in  support- 
ing the  power  of  the  court  to  declare  a  state  statute  un- 
constitutional which  conflicted  with  the  constitution  of  the 
State,  used  arguments  very  similar  to  those  used  later  by 
Marshall  in  Marbury  v.  Madison. 6 

1  See  these  cases  collected  in  Beveridge's  Life  of  John  Marshall,  vol. 
iii,  Appendix  C. 

3  Hylton  v.  United  States,  3  Dallas  171.  And  see  Calder  v.  Bull  (1798) 
3  Dallas  386,  particularly  Justice  Iredell's  statement,  p.  399;  and  the 
statement  of  Justice  Chase  in  Cooper  v.  Telfair  (1800)  4  Dallas  14,  19. 

3  We  shall  later  consider  the  validity  of  this  objection.    See  sec.  54. 

*  The  Supreme  Court  later  decided  that  they  had  no  authority  to  do 
so.  See  the  note  to  United  States  v.  Ferriera  (1851)  13  Howard  40,  52. 

s  Hayburn's  Case  and  notes  (1792)  2  Dallas  409. 

6  Vanhorne's  Lessee  v.  Dorrance  (1795)  2  Dallas  304.  When  a  federal 
court  has  jurisdiction  of  a  case  it  is  competent  for  it  to  decide  when  the 
State  statute  conflicts  with  the  State  constitution,  as  was  done  in  the 
case  just  cited.  Loan  Association  v.  Topeka  (1875)  20  Wallace  655.  A 


§  49  THE  JUDICIARY  121 

The  framers  of  the  Constitution  left  no  room  for  doubt 
that  they  intended  that  the  courts  should  treat  as  invalid 
any  state  legislation  which  was  repugnant  to  the  Federal 
Constitution.  That  instrument  declares  that 

''this  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all  treaties 
made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land;  and 
the  judges  in  every  State  shall  be  bound  thereby,  any- 
thing in  the  Constitution  or  laws  of  any  State  to  the 
contrary  notwithstanding."1 

This  is  an  express  mandate. to  the  state  courts.  -While  there 
is  not  in  the  Constitution  any  similar  express  direction  to 
the  federal  courts  to  set  aside  state  legislation  which  con- 
flicts with  the  Constitution,  the  language  above  quoted, 
together  with  the  provision  that  "the  judicial  power  shall 
extend  to  all  cases,  in  law  and  equity,  arising  under  this 
Constitution,"2  clearly  imply  such  authority.3  In  1798  a 
state  statute  was  attacked  before  the  Supreme  Court  as 
being  invalid  because  in  conflict  with  the  Federal  Constitu- 
tion. The  members  of  the  court  had  no  doubt  of  its  power 
to  declare  the  statute  inoperative  if  in  conflict  with  the 
fundamental  law,  but  in  fact  held  it  to  be  constitutional.4 
In  1 809  a  writ  of  mandamus  was  sought  from  the  Supreme 
Court  directing  a  district  judge  to  issue  an  attachment  to 
enforce  obedience  to  a  sentence  of  the  District  Court  in  an 
admiralty  case.  In  his  return  the  district  judge  set  up  as  a 
reason  for  not  acting  a  state  statute  passed  subsequent  to 
the  admiralty  proceedings,  requiring  the  governor  to  de- 
mand the  funds  sought  to  be  reached  in  the  admiralty 

State  court  may  pass  upon  the  validity  of  federal  legislation  but  an 
adverse  decision  is  ground  for  taking  the  case  to  the  Supreme  Court  on 
writ  of  error.  Judicial  Code,  sec.  237. 

1  Art.  VI,  par.  2. 

2  Art.  Ill,  sec.  2,  par  i. 

3  See  The  Federalist,  No.  80. 

4  Calder  v.  Bull,  3  Dallas  386. 


122        THE  AMERICAN  CONSTITUTION       §  49 

proceedings,  and  to  use  any  means  necessary  to  protect  such 
funds  from  process  issuing  out  of  the  federal  court.  The 
Supreme  Court  determined  that  the  federal  court  had  juris- 
diction in  the  original  proceeding,  and  that  the  Supreme 
Court  had  jurisdiction  to  entertain  this  mandamus  pro- 
ceeding, and  that ' '  the  Act  of  Pennsylvania,  with  whatever 
respect  it  may  be  considered,  cannot  be  permitted  to  preju- 
dice the  question."1  But  the  decisive  case  was  that  of 
Fletcher  v.  Peck2  in  which  the  Supreme  Court  held  uncon- 
stitutional and  void  a  Georgia  statute  which  attempted  to 
revoke  an  executed  grant,  and  which,  therefore,  impaired 
the  obligation  of  a  contract,  contrary  to  the  express  provi- 
sion of  the  Constitution. 3 

It  is  only  proper  that  the  federal  courts,  in  passing  upon 
the  acts  of  a  coordinate  branch  of  the  national  government, 
should  presume  that  that  branch  knew  the  limits  of  its  own 
power  and  had  been  careful  to  confine  itself  within  them. 
The  federal  courts,  therefore,  entertain  a  very  strong  pre- 
sumption that  congressional  legislation  is  constitutional,  and 
require  to  be  clearly  convinced  that  it  is  unconstitutional 
before  they  will  declare  it  invalid.  State  courts  take  the 
same  attitude  with  regard  to  state  legislation  attacked  as 
in  conflict  with  state  constitutions.4  When  state  legisla- 
tion is  attacked  in  the  federal  courts  as  impinging  upon  the 
sphere  of  government  delegated  by  the  Constitution  to  the 
federal  government,  there  seems  no  reason  why  the  federal 
courts  should  entertain  any  special  presumption  in  favor  of 

1  United  States  v.  Peters,  5  Cranch  115. 

2  (1810)  6  Cranch  37.    It  was  also  decided  in  this  case  that  the  fact 
that  the  state  legislature  had  acted  corruptly  was  no  ground  for  holding 
the  legislation  invalid. 

3  The  principle  of  judicial  review  of  legislation  does  not  exist  under  the 
constitutions  of  France,  Germany,  Belgium,  or  Switzerland,  but  it  does 
prevail  under  the  constitutions  of  the  British  Dominions.    Moore,  The 
Commonwealth  of  Australia,  233  et  seq.;  Hall's  Cases  on  Constitutional 
Law,  3 1 ,  note.    British  courts  have  no  power  to  set  aside  legislation  of  the 
British  Parliament.    I  Black.  Comm.  160;  Dicey 's  Law  of  the  Constitu- 
tion (8th  ed.),  39  et  seq. 

-»  Thayer,  "  The  Origin  and  Scope  of  the  American  Doctrine  of  Con- 
stitutional Law,"  7 Har-u.  L.  Rev.,  129,  138  to  152,  and  cases  cited. 


§  49  THE  JUDICIARY  123 

constitutionality.1  But  when  the  state  legislation  which 
is  under  consideration  is  within  the  sphere  of  state  action, 
being  attacked  as  contravening  one  of  the  limitations  put 
upon  the  States  by  the  Federal  Constitution,  the  federal 
courts  entertain  a  strong  presumption  in  favor  of  con- 
stitutionality. 2 

It  has  been  said  that  an  unconstitutional  act  "is,  in  legal 
contemplation,  as  inoperative  as  if  it  had  never  been 
passed."3  This  is  undoubtedly  true  as  long  as  it  contra- 


154. 

3  The  following  cases  among  others  illustrate  the  tendency  of  the 
Supreme  Court  to  resolve  doubts  as  to  the  constitutionality  of  state 
legislation  in  favor  of  such  enactments:  Hurtado  v.  California  (1884) 
1  10  U.  S.  516  (doing  away  with  indictment  in  criminal  cases)  ;  Twining  v. 
New  Jersey  (1908)  21  1  U.  S.  78  (taking  away  the  protection  against  self- 
incrimination)  ;  Powell  v.  Pennsylvania  (1887)  127  U.  S.  678  (prohibiting 
the  sale  of  oleomargarine);  Marcus  Brown  Holding  Co.  v.  Feldman 
(1921)  41  Sup.  Ct.  465  (restricting  the  rights  of  landlords  against  hold- 
over tenants).  State  statutes  will  not  be  declared  invalid  except  at  the 
suit  of  a  person  whose  constitutional  rights  are  invaded.  Hatch  v. 
Reardon  (1907)  204  U.  S.  152. 

The  federal  courts  are  liberal  in  allowing  the  Attorney-General  to  be 
heard  and  to  file  briefs  as  omicus  curia  in  proceedings  where  the  United 
States  is  not  a  party,  but  in  which  the  constitutionality  of  a  federal  statute 
is  attacked.  Also  others,  not  parties  but  interested  in  the  results  of 
suits,  have  been  allowed  the  same  privilege.  See  20  Law  Notes  67. 

3  Norton  v.  Shelby  County  (1886)  118  U.  S.  425,  442.  Judges  acting 
in  their  judicial  capacity  are  relieved  from  civil  liability  for  injuries 
resulting  from  their  mistakes,  and  so  are  clearly  relieved  when  they  act 
under  an  unconstitutional  statute.  Burdick  on  Torts  (3d  ed.)  35. 
Jurisdictions  differ  as  to  whether  ministerial  officers  are  relieved  from 
civil  liability  when  acting  under  judicial  process  fair  on  its  face  issuing 
from  a  tribunal  of  competent  jurisdiction  though  the  proceeding  was  had 
under  an  unconstitutional  law.  Ibid.,  278.  When  ministerial  officers 
act  under  unconstitutional  laws,  and  not  in  pursuance  of  judicial  process, 
issuing  from  a  tribunal  of  competent  jurisdiction  they  are  liable  to  civil 
action.  Campbell  v.  Sherman  (1874)  35  Wis.  103;  Warren  v.  Kelley 
(1888)  80  Me.  512.  Though  mistake  or  ignorance  of  law  is  no  excuse  for 
criminal  acts,  it  would  seem  that  a  person  acting  under  an  unconstitu- 
tional law  should  not  be  criminally  liable.  A  mistake  of  law  shared  by 
the  legislative  branch  of  the  government  should  surely  be  an  excuse. 
State  v.  Goodwin  (1898)  123  N.  C.  697.  But  see  Flaucher  v.  Camden 
(1893)  56  N.  J.  L.  244. 


124       THE  AMERICAN  CONSTITUTION       §  49 

venes  the  Constitution,  but,  if  it  has  not  been  repealed,  may 
it  later  become  constitutional,  and  so  become  effective? 
The  Supreme  Court  has  declared  that  a  state  insolvency 
law,  passed  while  a  national  bankruptcy  act  is  in  force  and 
inconsistent  with  it,  though  ineffective  while  the  national 
act  is  on  the  statute  books,  goes  into  force  upon  the  repeal 
of  the  national  act1 ;  and  that  a  state  law  forbidding  the  sale 
of  liquor  whether  imported  or  not,  though  ineffective  as  to 
imported  liquor  because  an  interference  with  interstate 
commerce,  becomes  effective  upon  the  passage  of  a  federal 
statute  removing  such  goods  from  the  protection  of  inter- 
state commerce. 2  It  has  been  decided  in  several  cases  that 
unconstitutional  statutes  may  be  expressly  validated  by 
later  constitutional  provisions.3  When  legislation  is  un- 
constitutional at  the  time  that  it  is  enacted  but  the  Con- 
stitution is  amended  so  that  the  statute  no  longer  conflicts 
with  it,  such  state  decisions  as  there  are  seem  generally  to 
hold  that  such  legislation  is  not  thereafter  effective. 4  The 
better  view,  however,  would  seem  to  be  that  the  operation 
of  legislation  in  conflict  with  constitutional  provisions  is 
suspended  during  such  conflict,  but  that,  when  such  conflict 
is  brought  to  an  end  by  amendment  to  the  Constitution, 
such  legislation  becomes  effective. 5  Legislation,  which  is 
constitutional  when  enacted,  may  become  unconstitutional 

1  Tua  v.  Carriere  (1886)  117  U.  S.  201,  210. 

a  In  re  Rahrer  (1891)  140  U.  S.  545.  To  the  same  effect  is  Cominino  v. 
Clarke  &  Son  (1918)  172  N.  Y.  Supp.  478. 

a  38  L.  R.  A.  (N.  5.)  77,  note. 

4  Ibid. 

s  People  v.  Roberts  (1896)  148  N.  Y.  360.  The  court  in  that  case, 
speaking  of  a  provision  of  the  Civil  Service  Act,  said:  "The  section  of 
the  Constitution  with  which  it  was  then  found  to  be  in  conflict,  and 
which  had  the  effect  to  suspend  its  operation  as  to  that  department, 
having  been  since  modified  in  such  a  manner  that  both  the  organic  law 
and  the  general  statute  are  in  harmony,  each  expressing  the  same  general 
policy  and  directing  the  same  thing  to  be  done,  the  suggestion  that,  in 
order  to  make  the  general  law  operate  upon  this  case,  the  Legislature 
must  reenact  it,  has  no  reasonable  or  just  foundation,  and,  so  far  as  I  am 
aware,  is  not  sustained  by  authority"  (p.  368).  See  also  Allison  v. 
Corker  (1902)  67  N.  J.  L.  596,  600. 


§  50  THE  JUDICIARY  125 

as  a  result  of  changed  circumstances.  This  is  true,  for 
instance,  when  a  statute  regulating  rates  is  valid  when 
passed,  but  because  of  the  great  increase  in  operating  ex- 
penses later  becomes  confiscatory.  x 

§50.  Judicial  Control  of  Executive  Action.  It  is  now  well 
settled  that  executive  officers,  aside,  at  least,  from  the  chief 
executive,  are  civilly  liable  for  illegal  or  unconstitutional 
acts  done  in  their  official  capacity.2  They  may  also  be 
enjoined  from  doing  illegal  acts  and  from  acting  under 
unconstitutional  Itatutes3;  and  mandamus  will  lie  against 
them  to  compel  the  doing  of  non-discretionary,  ministerial 
acts,  and  to  compel  the  exercise  of  discretion,  but  not  for  the 
purpose  of  directing  the  way  in  which  their  discretion  shall 
be  exercised. 4 

In  the  case  of  Mississippi  v.  Johnson5  an  injunction  was 
sought  to  restrain  the  President  from  putting  the  Recon- 
struction Acts  into  effect  in  Mississippi,  on  the  ground  that 

1  Municipal  Gas  Co. v.  Public  Serv.  Comm.  (1919)  225  N.  Y.  89, 96.  See 
also  Anderson  v.  Pacific  Coast  S.  S.  Co.  (1912)  225  U.  S.  187,  196  (regula- 
tion of  pilotage);  In  re  Nelson  (1895)  69  Fed.  712  (territorial  legislation 
superseded  by  federal  legislation  again  becomes  operative  when  the 
territory  is  admitted  as  a  State,  adopting  by  its  Constitution  the  laws 
of  the  territory  as  the  laws  of  the  State). 

a  With  the  exceptions  pointed  out  in  a  note  to  the  last  paragraph  with 
regard  to  judicial  officers  and  those  executing  judicial  process.  United 
States  v.  Lee  (1882)  106  U.  S.  196;  Cunningham  v.  Macon  &  B.  R.  R. 
Co.  (1883)  109  U.  S.  446,  452;  Poindexter  v.  Greenhow  (1884)  114  U.  S. 
270;  29  Cyc.  1440  and  1448.  The  fact  that  one  acts  under  directions 
of  a  superior  is  no  defense,  except  when  a  military  officer  gives  a  com- 
mand to  a  subordinate  which  does  not  clearly  on  its  face  show  its  illegal- 
ity, In  re  Fair  (1900)  100  Fed.  149,  Clark  and  Marshall,  The  Law  of 
Crimes  (2d  ed.),  120,  or  where  an  officer  does  purely  ministerial  acts  in 
executing  an  order  of  a  superior,  fair  on  its  face.  29  Cyc.  1441. 

3  Allen  v.  Baltimore  &  O.  R.  R.  Co.  (1884)  1 14  U.  S.  31 1 ;  Pennoyer  v. 
McConnaughy  (1891)  140  U.  S.  I ;  Ex  parte  Young  (1908)  209  U.  S.  123; 
22  Cyc.  879  et  seq. 

*Marbury  v.  Madison  (1803)  I  Cranch  137,  166  (Secretary  of  State); 
Kendall  v.  United  States  (1838)  12  Peters  524  (Postmaster  General); 
United  States  v.  Black  (1888)  128  U.  S.  40  (Commissioner  of  Pensions); 
26  Cyc.  227  et  seq. 

s  (1866)  4  Wallace  475- 


126       THE  AMERICAN  CONSTITUTION       §  50 

the  statutes  were  unconstitutional,  but  the  Supreme  Court 
refused  to  allow  the  bill  to  be  filed.  Part  of  the  argument  of 
the  court  went  upon  the  ground  that  the  execution  of  the 
statute  in  question  required  the  exercise  of  discretion  on 
the  part  of  the  President,  and  that  a  court  will  not  control 
the  exercise  of  discretion.  This  argument  seems  very  ques- 
tionable. When  an  officer  is  enjoined  from  enforcing  a  law, 
his  discretion  in  the  administration  of  the  law  is  not  con- 
trolled, in  the  sense  in  which  it  would  be  if  a  writ  of 
mandamus  were  issued  directing  him  h\)w  he  should  ad- 
minister it,  that  is,  the  court's  discretion  is  not  substituted 
for  that  of  the  officer  as  to  how  the  law  shall  be  admin- 
istered. It  has  been  asserted  that  the  President  has  a' 
discretionary  right  to  refuse  to  enforce  a  statute  duly  passed 
on  the  ground  that  he  thinks  it  unconstitutional.1  But  it 
would  seem  that  the  President's  power  in  this  regard  is 
exhausted  when  he  has  exercised  his  right  of  veto. 2  If  this 
is  true,  then  to  enjoin  him  from  enforcing  a  statute  is  not 
controlling  his  discretion.  However,  the  decision  of  the 
Supreme  Court  in  refusing  to  enjoin  the  President  seems 
correct  and  eminently  wise.  If  the  President  refused  to 
obey  the  court's  direction  the  only  way  to  compel  obedience 
would  be  to  imprison  him  for  contempt.  To  say  that  this 
would  be  undesirable  would  be  to  put  the  case  very  mildly. 
But  the  court  would  not  be  able  to  enforce  its  decree  against 
the  President,  since  he  controls  the  entire  executive  machin- 
ery, and  is  commander-in-chief  of  the  army.  Furthermore, 
if  the  President  obeyed  the  court's  injunction,  and  refused 
to  enforce  the  statute  in  question,  he  might  well  be  brought 
into  conflict  with  Congress,  with  the  possible  consequence 
of  impeachment. 3 

Clearly  a  writ  of  mandamus  should  not  issue  for  the  pur- 
pose of  controlling  the  President's  discretion.  The  Supreme 
Court  has  not  had  presented  to  it  the  question  whether  it 

1  Meigs,  "The  Independence  of  the  Departments  of  Government," 
23  Amer.  L.  Rev.  594. 

a  Willoughby  on  the  Constitution,  sec.  767. 

3  Mississippi  v.  Johnson  (1866)  4  Wallace  475,  501. 


§  si  THE  JUDICIARY  127 

will  issue  such  a  writ  to  compel  the  President  to  do  a  merely 
ministerial  act,  or  to  exercise  his  discretion  when  it  is  his 
duty  to  do  so,  but  it  is  believed  that  the  court  would  not 
issue  such  a  writ  even  under  those  circumstances,  since  the 
very  cogent  arguments  against  issuing  an  injunction,  based 
upon  the  possibility  of  a  clash  between  the  President  and 
the  court,  would  also  apply  in  such  a  case.  * 

Similar  arguments  of  public  policy  and  convenience 
would  seem  to  point  to  the  propriety  of  denying  the  right 
to  an  injunction  against  the  President  even  to  prevent  a 
private  wrong. 2  In  an  action  for  damages  brought  against 
the  President  process  would  issue  against  his  property  and 
not  against  his  person,  but  it  is  at  least  questionable  whether 
public  policy  should  allow  the  President  to  be  distracted 
from  public  business  to  settle  private  disputes  during  his 
term  of  office. 3 

§51.  The  Supreme  Court's  Attitude  Towards  Political 
Questions.  The  legislative  and  executive  branches  of 

1  And  see  Kendall  v.  United  States  (1838)  12  Peters  524,  609. 

2  In  the  famous  trial  of  Aaron  Burr  for  treason  Chief  Justice  Marshall 
issued  one  and  perhaps  two  subpoenas  duces  tecum  directed  to  President 
Jefferson.    Jefferson  refused  to  obey  or  answer  them  on  the  ground  that 
the  President  could  not  be  taken  from  his  executive  duties  by  such 
judicial  process  and  Marshall  intimated  that  for  such  refusal  the  Presi; 
dent  would  not  be  punishable  as  for  a  contempt.     See  Beveridge's  Life 
(f  John  Marshall,  vol.  iii,  pp.  444  to  447,  454  and  455,  522;  Goodnow, 
Principles  of  the  Administrative  Law  of  the  United  States,  91. 

*  The  state  courts  are  irreconcilably  divided  on  the  question  whether 
the  governor  can  be  compelled  by  mandamus  to  do  a  purely  ministerial 
act,  the  majority  however  being  against  the  exercise  of  such  a  power. 
See  the  elaborate  notes  reviewing  the  cases  in  6  L.  R.  A.  (N.  S.)  750, 
and  32  L.  R.  A.  (N.  S.)  355.  It  seems  that  state  courts  generally  will 
not  enjoin  the  governor.  Frost  v.  Thomas  (1899)  26  Colo.  222;  State  v. 
Huston  (1910)  27  Okl.  606;  Cooley,  Constitutional  Limitations  (7th  ed.), 
162,  n.  Compare  Ekern  v.  McGovern  (1913)  154  Wis.  157,  204  to  220, 
and  Hatfield  v.  Graham  (1914)  73  W.  Va.  759. 

The  Supreme  Court  in  Kentucky  v.  Dennison  (1860)  24  Howard  66, 
refused  to  issue  a  writ  of  mandamus  to  a  state  governor  to  compel 
interstate  rendition,  though  admitting  that  he  was  derelict  in  a  non- 
discretionary  duty.  (See  sees.  208  and  209.)  The  federal  courts  have, 
however,  frequently  enjoined  a  state  board  of  which  the  governor  was  a 
member.  See  Hall's  Cases  on  Constitutional  Law,  1 12,  n. 


128       THE  AMERICAN  CONSTITUTION       §  51 

government  are  essentially  the  political  branches,  and  with 
the  exercise  of  their  distinctively  political  powers  the 
judiciary  will  not  interfere.  On  this  point  Chief  Justice 
Marshall  said1: 

"By  the  Constitution  of  the  United  States,  the  President 
is  invested  with  certain  important  political  powers,  in  the 
exercise  of  which  he  is  to  use  his  own  discretion,  and  is 
accountable  only  to  his  country  in  his  political  character, 
and  to  his  own  conscience.  To  aid  him  in  the  performance 
of  these  duties,  he  is  authorized  to  appoint  certain  officers, 
who  act  by  his  authority  and  in  conformity  with  his 
orders. 

"In  such  cases  their  acts  are  his  acts;  and  whatever 
opinion  may  be  entertained  of  the  manner  in  which  exec- 
utive discretion  may  be  used,  still  there  exists,  and  can 
exist,  no  power  to  control  that  discretion.  The  subjects 
are  political.  They  respect  the  nation,  not  individual 
rights,  and  being  entrusted  to  the  executive,  the  decision 
of  the  executive  is  conclusive.  The  application  of  this 
remark  will  be  perceived  by  adverting  to  the  Act  of 
Congress  for  establishing  the  department  of  foreign 
affairs.  This  officer  as  his  duties  were  prescribed  by  that 
act,  is  to  conform  precisely  to  the  will  of  the  President. 
He  is  the  mere  organ  by  which  that  will  is  communicated. 
The  acts  of  such  an  officer,  as  an  officer,  can  never  be 
examinable  by  the  courts." 

Foremost  among  these  political  powers,  as  suggested  by 
Marshall,  are  those  which  have  to  do  with  our  foreign  rela- 
tions.    The  determination  of  the  executive  department  is 
conclusive  upon  the  courts  on  the  question  whether  diplo- 
matic or  consular  agents  of  foreign  countries  are  to  be 
recognized  or  not. 2    When  there  is  dispute  between  foreign 
governments  as  to  which  has  jurisdiction  over  certain  terri- 
tory, the  courts  are  concluded  by  the  decision  of  the  execu- 
tive department  on  this  point3;  and  this  is  all  the  more 
1  Marbury  v.  Madison  (1803)  I  Cranch  137,  167. 
*Ex  parte  Baiz  (1890)  135  U.  S.  403. 
a  Williams  v.  Suffolk  Ins.  Co.  (1839)  13  Peters  415. 


§  51  THE  JUDICIARY  129 

true  when  the  dispute  arises  between  the  United  States  and 
a  foreign  government. *  The  courts  will  also  follow  without 
question  the  decision  of  the  political  departments  that  a 
state  of  war  exists  to  which  the  United  States  is  a  party  and 
as  to  when  it  begins  and  ends2;  as  well  as  the  decision  of  the 
executive  department  that  a  state  of  war  exists  between 
foreign  nations,  and  that  a  former  part  of  a  foreign  country ' 
is  now  an  independent  political  entity.3  When  questions 
arise  as  to  the  validity  of  the  ratification  of  a  treaty  by  a 
foreign  government,  or  as  to  whether  a  treaty  is  still  in  force, 
the  courts  will  adopt  the  conclusions  reached  on  these  points 
by  the  political  departments.4 

In  Luther  v.  Borden5  a  case  was  presented  to  the  federal 
courts  in  which  it  appeared  that  two  separate  governments 
had  claimed  to  wield  constitutional  authority  in  Rhode 
Island,  and  it  was  sought  to  have  the  courts  determine  which 
had  in  fact  been  the  real  government.  The  Circuit  Court 
and  the  Supreme  Court  refused  to  examine  the  evidence 
on  the  subject,  declaring  that  it  was  a  question  for  the 
political,  and  not  the  judicial  branch  of  the  federal  govern- 
ment. Primarily  it  was  declared  to  be  a  question  for  Con- 
gress. Since  each  House  is  "the  judge  of  the  elections, 
returns,  and  qualifications  of  its  own  members,  "6  a  dispute 
as  to  which  is  the  constitutional  government  in  a  State 
might  be  determined  by  the  determination  of  those  ques- 
tions. The  Rhode  Island, dispute  never  reached  this  stage, 
however,  since,  before  such  a  question  could  arise,  a  new 
Constitution  was  adopted  in  the  State,  which  was  recognized 
by  all  factions.  But  it  is  further  provided  in  the  Constitu- 
tion that, 

1  Foster  v.  Neilson  (1829)  2  Peters  253. 

3  The  Prize  Cases  (1862)  2  Black  635;  The  Protector  (1871)  12  Wal- 
lace 700;  The  Pedro  (1899)  175  U.  S.  354. 

3  United  States  v.  Palmer  (1818)  3  Wheaton  610.  And  see  the  procla- 
mation adopted  by  Congress  with  regard  to  Cuba,  The  Pedro  (1899)  175 
U.  S.  354,  355. 

4  Doe  v.  Braden  (1853)  16  Howard  635. 
s  (1849)  7  Howard  i. 

6  Art.  I,  sec.  5,  par.  I. 

9 


130       THE  AMERICAN  CONSTITUTION       §  51 

"The  United  States  shall  guarantee  to  every  State  in 
this  Union  a  republican  form  of  government,  and  shall 
protect  each  of  them  against  invasion,  and,  on  applica- 
tion of  the  Legislature,  or  of  the  Executive  (when  the 
Legislature  cannot  be  convened),  against  domestic 
violence."1 

The  court  in  Luther  v.  B or  den  said  that  this  duty  also  rested 
primarily  upon  Congress,  although  it  might  be  delegated  by 
Congress  to  some  other  branch  of  the  government.  This 
had  been  done  to  the  extent  of  authorizing  the  President  to' 
use  the  militia  of  the  States  and  the  military  forces  of  the 
United  States  to  put  down  insurrection  in  a  State,  upon  the 
request  of  the  legislature  of  the  State,  or  of  the  state  execu- 
tive, when  the  state  legislature  cannot  be  convened. 2  Act- 
ing under  this  authority,  the  President  had  responded  to 
the  request  for  military  aid  of  the  charter  government  in 
Rhode  Island,  thus  recognizing  that  as  the  constitutional 
government  of  the  State.  The  court  held  that  it  was  con- 
cluded by  this  determination. 

Acting  upon  the  same  principle,  the  Supreme  Court  has 
refused  to  consider  the  question  whether  a  State  has  or  has 
not  a  republican  form  of  government.  In  an  action  brought 
to  recover  a  state  tax  the  defense  was  that  the  tax  was  un- 
constitutional, taking  the  defendant's  property  without  due 
process,  since  the  state  constitution  made  provision  for 
legislation  by  initiative  and  referendum,  and,  the  State, 
therefore,  had  not  a  republican  form  of  government. 3  Again 
in  a  later  case  it  was  contended  that  the  passage  of  a  State 
Workmen's  Compensation  Act  constituted  a  departure 
from  a  republican  form  of  government,  and  consequently, 
was  unconstitutional. 4  In  each  case  the  court  declared  that 
this  was  not  a  question  for  judicial  determination,  but  a 
political  question  within  the  exclusive  jurisdiction  of  the 
political  side  of  the  government. 

1  Art.  IV,  sec.  4. 

2  Rev.  St.,  sec.  5297.    See  3  Fed.  Stat.  Ann.  929  and  930. 

3  Pacific  States  T.  &  T.  Co.  v.  Oregon  (1912)  223  U.  S.  118. 

*  Mountain  Timber  Co.  v.  Washington  (1917)  243  U.  S.  219. 


§  5i  THE  JUDICIARY  131 

In  Georgia  v.  Stanton1  an  injunction  was  sought  to  restrain 
the  Secretary  of  War  and  Generals  Grant  and  Pope  from 
enforcing  the  Reconstruction  Acts  in  Georgia,  on  the  ground 
that  such  enforcement 

"would  annul,  and  totally  abolish  the  existing  state 
government  of  Georgia,  and  establish  another  and  differ- 
ent one  in  its  place;  in  other  words,  would  overthrow  and 
destroy  the  corporate  existence  of  the  State,  by  depriving 
it  of  all  the  means  and  instrumentalities  whereby  its 
existence  might,  and,  otherwise  would,  be  maintained."2 

The  court  held  that  here  was  involved  merely  a  political 
controversy  between  the  State  of  Georgia  and  the  United 
States,  and  that  over  such  a  question  the  court  had  no 
jurisdiction.  In  the  words  of  the  court,  "the  rights  for  the 
protection,  of  which  our  authority  is  invoked,  are  the  rights  t 
of  sovereignty,  of  political  jurisdiction,  of  government,  of 
corporate  existence  as  a  State,  with  all  its  constitutional 
powers  and  privileges."3  The  court  relied  quite  largely 
upon  the  earlier  case  of  Cherokee  Nation  v.  Georgia,4  in 
which  the  Cherokee  Nation,  asserting  their  independence 
sought  to  restrain  the  State  of  Georgia  from  exercising 
legislative  power  over  them.  The  court  held  that  it  had  no 
original  jurisdiction  of  that  case  because  the  Cherokee 
Nation  was  not  a  foreign  nation  within  the  meaning  of  the 
Judiciary  Article  of  the  Constitution5;  but  the  judges  also 
declared  that  the  controversy  with  regard  to  the  legislative 
control  of  the  Indian  nation  by  the  State  of  Georgia  was 
purely  political,  and,  therefore,  not  a  proper  one  for  a  court 
to  entertain.6 

'  (1867)  6  Wallace  50.       .          a  Ibid.,  76. 

3  Ibid.,  77.  This  decision  was  followed  without  opinion  in  Mississippi 
v.  Stanton  (1867)  154  U.  S.  554. 

*  (1831)  5  Peters  i.  &  Art.  Ill,  sec.  2. 

6  In  Rhode  Island  v.  Palmer,  one  of  the  cases  passed  upon  under  the 
title  of  the  National  Prohibition  Cases  (1920)  253  U.  S.  350,  the  State  of 
Rhode  Island  attacked  the  Eighteenth  Amendment  as  unconstitutional 
because  it  deprived  the  State  of  its  inherent  police  power.  Mr.  Charles 
E.  Hughes,  previously  a  Justice  of  the  Supreme  Court,  and  afterwards 
Secretary  of  State,  in  a  brief  in  support  of  the  amendment  contended 


132       THE  AMERICAN  CONSTITUTION       §  52 

It  is,  however,  suggested  in  both  of  the  cases  just  dis- 
cussed that  if  personal  or  property  rights  had  been  involved 
in  a  case  between  proper  parties  the  constitutionality  of  the 
legislation  in  question  might  have  been  considered. x  Per- 
sonal political  rights  can  be  vindicated  by  action,  as  for 
instance  the  right  to  vote2;  and  the  right  to  hold  political 
office  may  be  inquired  into  by  quo  warranted  So  the 
Supreme  Court  has  held  that  the  validity  of  a  state  statute 
for  the  choosing  of  presidential  electors  may  be  inquired 
into  at  the  suit  of  nominees  for  that  office4;  and  state  courts 
have  generally  held  that  the  validity  of  apportionment 
acts  may  be  passed  upon  by  the  courts. 5 

§52.  Judicial  Functions  Confined  to  "Cases"  and  "Con- 
troversies" In  1907,  certain  federal  statutes  having  been 
passed  which  affected  the  rights  of  the  Cherokee  Indians 
in  lands  allotted  to  them,  Congress  passed  an  act  permitting 
suits  to  be  brought  in  the  Court  of  Claims  to  test  the  valid- 
ity of  those  statutes,  with  a  right  of  appeal  to  the  Supreme 
Court.  The  Court  of  Claims  upheld  the  statutes  in  ques- 
tion, and  upon  appeal  to  the  Supreme  Court  that  tribunal 
considered  the  question  of  its  jurisdiction. 6  The  Constitu- 
tion declares  that  ' '  the  judicial  .power  shall  extend  to  all 
cases,  in  law  and  equity,  "  under  the  Constitution,  laws,  and 
treaties  of  the  United  States,  or  which  may  affect  ambassa- 
dors, ministers,  and  consuls;  "to  all  cases  of  admiralty  and 
maritime  jurisdiction";  and  to  "controversies"  to  which 
the  United  States  or  a  State  is  a  party,  or  where  there  is 
diverse  citizenship,  or  where  land  is  claimed  under  grants 

that  the  court  had  no  jurisdiction  of  this  question,  as  it  involved  a  purely 
political  controversy.  The  amendment  was  upheld,  but  no  opinion  was 
rendered  in  the  case.  See  the  consideration  of  the  case  in  sec.  22. 

1  Cherokee  Nations.  Georgia  (1831)  5  Peters  I,  19;  Georgia  v.  Stanton 
(1867)  6  Wallace  50,  77- 

2 15  Cyc.,  314  and  cases  there  cited. 

315  Cyc.,  393  and  cases  there  cited. 

4  McPherson  v.  Blacker  (1892)  146  U.  S.  i. 

s  State  v.  Cunningham  (1892)  81  Wis.  440,  and  cases  cited  from  other 
States. 

6  Muskrat  v.  United  States  (1911)  219  U.  S.  346. 


§  52  THE  JUDICIARY  133 

of  different  States. x  If,  then,  a  proceeding  before  a  court  is 
not  a  " case "  or  a  "controversy  "  it  is  not  judicial  in  charac- 
ter. The  court  in  the  case  just  referred  to  accepted  the 
definition  of  these  terms  by  Justice  Field  at  circuit  in  an 
earlier  case, 2  as  follows : 

"The  judicial  article  of  the  Constitution  mentions 
cases  and  controversies.  The  term  'controversies/  if 
distinguishable  at  all  from  '  cases, '  is  so  in  that  it  is  less 
comprehensive  than  the  latter,  and  includes  only  suits  of 
a  civil  nature.  Chisholm  v.  Georgia,  2  Ball.  431,  432; 
i  Tuck.  Bl.  Comm.  App.,  420,  421.  By  cases  and  con- 
troversies are  intended  the  claims  of  litigants  brought 
before  the  courts  for  determination  by  such  regular 
proceedings  as  are  established  by  law  or  custom  for  the 
protection  or  enforcement  of  rights,  or  the  prevention, 
redress,  or  punishment  of  wrongs.  Whenever  the  claim 
of  a  party  under  the  Constitution,  laws,  or  treaties  of  the 
United  States  takes  such  a  form  that  the  judicial  power  is 
capable  of  acting  upon  it,  then  it  has  become  a  case. 
The  term  implies  the  existence  of  present  or  possible 
adverse  parties  whose  contentions  are  submitted  to  the 
court  for  adjudication." 

The  court  held  that  the  proceedings  authorized  by  the 
statute  in  question  to  be  brought  before  the  Court  of  Claims, 
with  a  right  of  appeal  to  the  Supreme  Court,  was  not  a  case 
or  controversy,  because  there  were  no  adverse  parties  whose 
rights  were  to  be  settled,  but  the  proceedings  were  planned 
merely  to  get  a  determination  as  to  the  constitutionality  of 
certain  legislation.3  Applying  the  same  principle,  the 
Supreme  Court  has  held  that  when  the  decision  of  a  tribunal 
is  subject  to  review  by  an  administrative  officer  or  by  Con- 

1  Art.  Ill,  sec.  2,  par.  I. 

a  In  re  Pacific  Railway  Commission  (1887)  32  Fed.  241,  255. 

3  With  regard  to  the  constitutionality  of  statutes  providing  for  de- 
claratory judgments  see  notes  in  jo  Yale  L.  Jour.,  161 ;  IQ  Mich.  L.  Rev., 
88;  21  Columbia  L.  Rev.,  168.  With  regard  to  the  practice  in  England 
and  Canada  see  Ridell,  "Declaratory  Judgments  in  Canada,  "  25  Law 
Notes,  46. 


134       THE  AMERICAN  CONSTITUTION       §  53 

gress  it  is  not  judicial  in  character,  for  a  judicial  proceeding 
is  one  in  which  a  court  renders  final  decision,  subject  only 
to  review  by  an  appellate  court. I  Also,  when  in  a  criminal 
trial  the  defendant  has  been  acquitted  and  cannot,  therefore, 
be  further  tried  because  of  the  constitutional  provision 
against  double  jeopardy, 2  a  review  of  the  proceedings  in  the 
lower  court  for  the  purpose  of  establishing  a  precedent  for 
the  future  is  not  in  its  nature  judicial. 3 

§53.  Control  by  Congress  of  the  Jurisdiction  of  the  Supreme 
Court.  We  have  seen  that  Congress  has  power  to  restrict 
the  appellate  jurisdiction  of  the  Supreme  Court  below,  the 
full  scope  of  that  jurisdiction  which  is  permitted  to  it  by  the 
Constitution. 4  But  Congress  may  not  add  to  the  Supreme 
Court's  original  jurisdiction, 5  and  obviously  may  not  cut  it 
down. 

In  the  cases  considered  in  the  last  preceding  section  the 
court  was  dealing  with  statutes  whereby  Congress  sought  to 
invest  the  court  with  appellate  jurisdiction  in  proceedings 
which  the  court  held  to  be  nonjudicial.  In  each  case  the 
court  came  to  the  conclusion  that,  since  it  was  created  by 
the  Constitution,  and  the  limits  of  its  appellate  jurisdiction 
were  set  by  that  instrument  and  extended  only  to  judicial 
cases  and  controversies  as  defined  by  the  court,  Congress 
had  no  authority  taenlarge  that  jurisdiction,  and  the  court 
refused  to  hear  the  appeals. 

From  very  early  days  the  Crown  and  the  House  of  Lords 
have  called  upon  the  English  judges  for  advisory  or  ' '  con- 
sultative" opinions.6  In  Canada  the  Governor-General  in 
Council,  and  with  certain  limitations  the  Senate  and  House 
of  Commons  may  refer  questions  to  the  Supreme  Court.7 
In  Australia  the  judiciary  is  not  under  a  duty  to  give  ad- 

1  United  States  v.  Ferreira  (1851)  13  Howard  40;  Gordon  v.  United 
States  (1864)  2  Wallace  561  and  117  U.  S.  697. 
9  See  sec.  142. 

3  United  States  v.  Evans  (1909)  213  U.  S.  297. 

4  Sec.  43.  s  Sec.  42.  6  Thayer,  Legal  Essays,  46. 

7  Moore,  The  Commonwealth  of  Australia,  241.  Upon  such  reference 
all  parties  in  interest  are  heard,  and  from  the  decision  there  is  an  appeal 
to  the  King  in  Council.  This  is  practically  a  declaratory  judgment. 


§  53  THE  JUDICIARY  135 

visory  opinions.1  It  was  proposed  in  the  Constitutional 
Convention  of  1787  that 

"Each  branch  of  the  Legislature,  as  well  as  the  Supreme 
Executive  shall  have  authority  to  require  the  opinions 
of  the  Supreme  Judicial  Court  upon  important  questions 
of  law,  and  upon  solemn  occasions."2 

Nothing  came  of  this  suggestion,  however.  In  1793  Presi- 
dent Washington,  through  Jefferson,  his  Secretary  of  State, 
inquired  of  the  Supreme  Court  whether  their  advice  would 
be  available  to  the  executive  on  matters  with  regard  to  the 
interpretation  of  treaties  and  laws.  The  justices  answered 

"that  in  consideration  of  the  lines  of  separation  drawn 
by  the  Constitution  between  the  three  departments  of 
government,  and  being  judges  of  a  court  of  last  resort, 
afforded  strong  arguments  against  the  propriety  of  extra  - 
judicially  deciding  the  questions  alluded  to,  and  express- 
ing the  view  that  the  power  given  by  the  Constitution  to 
the  President  of  calling  on  heads  of  departments  for 
opinions  'seems  to  have  been  purposely,  as  well  as  ex- 
pressly, united  to  the  executive  departments.'  Corre- 
spondence and  Public  Papers  of  John  Jay,  vol.  iii,  p.  486.  "3 

Here  we  find  the  Supreme  Court  very  early  expressing  the 
view  that  its  duties  are  definitely  limited  by  the  terms  of  the 
Constitution,  and  are  not  to  be  enlarged  beyond  those 
limits. 4 , 

1  Except  with  regard  to  certain  questions  under  the  Local  Govern- 
ment Act,  1888,  in  which  cases  the  opinions  have  no  binding  authority. 
Moore,  The  Commonwealth  of  Australia,  242. 

3Farrand,  The  Records  of  the  Federal  Convention,  vol.  ii,  p.  341. 
The  suggested  provision  is  practically  identical  with  that  put  into  the 
Massachusetts  constitution  of  1780,  and  copied  into  that  of  New  Hamp- 
shire of  1784,  The  provision  introduced  into  the  Massachusetts  consti- 
tution was  undoubtedly  intended  as  an  adaptation  of  the  English  prac- 
tice. The  Opinion  of  the  Justices  (1879)  126  Mass.  557,  561. 

3  Muskrat  v.  United  States  (1911)  219  U.  S.  346,  354.  See  also 
Marshall's  Life  of  Washington,  vol.  v,  p.  441. 

«  With  regard  to  advisory  opinions  by  state  courts  see  Thayer,  Legal 
Essays,  42  to  59;  Hall's  Cases  on  Constitutional  Law,  44  and  45. 


136       THE  AMERICAN  CONSTITUTION       §  54 

§54.  Imposing  Nonjudicial  Functions  upon  the  Lower 
Federal  Courts.  The  lower  federal  courts  unlike  the 
Supreme  Court,  are  not  created,  and  do  not  have  their 
jurisdiction  defined  by  the  Constitution.  The  Constitution 
vests  in  Congress  the  authority  to  establish  the  federal 
courts  below  the  Supreme  Court  and  to  define  their  jurisdic- 
tion. x  It  may  increase  or  decrease  their  judicial  functions 
or  abolish  them  altogether. 2  But  may  it  impose  upon  them 
nonjudicial  functions  ? 

In  1792  Congress  passed  an  act  for  the  relief  of  certain 
classes  of  pension  claimants,  and  directed  the  Circuit  Courts 
to  hear  such  claims,  giving  a  power  of  review  to  the  Secre- 
tary of  War  and  to  Congress.  The  Circuit  Courts  for  the 
districts  of  New  York,  Pennsylvania,  and  North  Carolina, 
in  which  courts  sat  at  the  time  as  Circuit  Judges  five  out 
of  the  six  Justices  of  the  Supreme  Court,  declared  the  statute 
to  be  an  unconstitutional  attempt  to  impose  nonjudicial 
functions  upon  the  courts,  and  that  they  could  not,  there- 
fore, in  their  judicial  capacity  hear  the  claims  presented. 
Since  the  courts  were  not  empowered  to  render  final  judg- 
ment in  the  proceedings  in  question,  those  proceedings  were 
clearly  not  judicial  in  character.  The  position  taken  by  the 
judges  was  that  the  Circuit  Courts  were  among  those  courts 
which  Congress  was  authorized  to  establish  by  the  Judiciary 
Article  of  the  Constitution,  which  declared  that  the  judicial 
power  of  the  United  States  shall  be  vested  in  those  courts 
and  in  the  Supreme  Court,  and  then  defines  judicial  power 

1  Sec.  41. 

2  It  seems  very  doubtful  whether,  after  a  federal  judge  has  been 
appointed,  he  can  be  ousted  from  office  by  the  abolition  of  the  court  of 
which  he  was  a  member,  or  by  the  repeal  of  the  statute  providing  for  his 
appointment,  because  of  the  constitutional  provision  (art.  Ill,  sec.  i) 
that  federal  judges  shall  hold  office  during  good  behavior.     This  was 
done,  however,  when  the  statute  remodelling  the  judiciary,  which  was 
passed  at  the  end  of  John  Adams  administration,  was  repealed  when 
Jefferson  took  office.     (See  sec.  41.)     When  the  Circuit  Courts  were 
abolished  the  Circuit  Judges  continued  to  act  as  members  of  the  Circuit 
Courts  of  Appeals,  and  when  the  Commerce  Court  was  done  away  with 
other  provision  was  made  for  the  members  of  that  court.     (As  to  the 
abolition  of  these  courts  see  sec.  41.) 


§  54  THE  JUDICIARY  137 

in  such  a  way  as  to  exclude  the  proceedings  in  question ;  and 
that  such  courts  having  been  established,  they  could  not  be 
compelled  to  entertain  jurisdiction  outside  of  that  provided 
for  in  the  Constitution.  A  writ  of  mandamus  was  sought 
from  the  Supreme  Court  to  compel  one  of  the  Circuit  Courts 
to  entertain  a  proceeding  under  the  act,  but  the  objections 
of  the  judges  had  been  communicated  to  the  President,  and 
before  any  decision  was  reached  in  the  Supreme  Court  the 
statute  in  question  was  repealed. x  In  one  of  the  circuits  the 
judges  consented  to  consider  themselves  appointed  individ- 
ually as  commissioners  to  hear  the  claims,2  but  the  Su- 
preme Court  later  decided,  apparently  unanimously,  that 
this  was  not  intended,  and  that  they  had  no  authority  to 
act  in  that  capacity  under  the  statute. 3 

By  statutes  of  1823  and  1834  Congress  directed  the  Terri- 
torial Court  of  Florida  to  hear  claims  for  damages  caused  to 
Spanish  inhabitants  and  officers  by  the  American  army 
before  the  cession  of  Florida  to  the  United  States,  and  to 
report  its  findings  to  the  Secretary  of  the  Treasury,  who  was 
to  pay  them  if  satisfied  that  they  were  just  and  equitable. 
In  1 849  congressional  legislation  directed  the  District  Court 
for  the  northern  district  of  Florida  to  hear  similar  claims. 
This  the  District  Court  did,  and  it  was  sought  to  take  an 
appeal  from  such  a  determination  to  the  Supreme  Court. 
As  we  have  seen  just  above,  the  Supreme  Court  refused  to 
entertain  this  appeal  on  the  ground  that  the  proceeding 
was  nonjudicial.  In  doing  so  the  court  expressed  its  opinion 
that  the  District  Court  had  erred  in  assuming  that  the 
hearing  of  the  claim  in  question  came  under  its  judicial 
duties,  and  approved  the  position  taken  by  the  judges  under 
the  statute  of  1792  that  such  duties  cannot  be  imposed  by 
Congress  upon  a  court  established  under  the  direction  of  the 
Judiciary  Article  of  the  Constitution.4 

1  The  opinions  of  the  judges  will  be  found  in  a  note  to  Hayburn's 
Case  (1792)  2  Dallas  409.  *  Ibid. 

a  See  the  note  to  United  States  v.  Ferreira  (1851)  13  Howard  40,  52. 

4  United  States  v.  Ferreira  (1851)  13  Howard  40.  See  also  Gordon  v. 
United  States  (1864)  117  U.  S.  697,  703. 


138       THE  AMERICAN  CONSTITUTION       §  54 

By  act  of  February  24,  1855,"  Congress  established  the 
Court  of  Claims.  By  this  act  the  court  was  directed  to 
investigate  claims  founded  upon  petitions,  or  referred  to  it 
by  either  House  of  Congress.  It  had,  however  no  authority 
to  render  final  judgments,  but  was  directed  in  each  case  to 
report  to  Congress,  and,  when  it  believed  the  claim  to  be 
valid,  it  was  directed  to  frame  for  the  consideration  of 
Congress  an  appropriate  bill  for  the  payment  of  such  claim. 
In  1863  this  law  was  amended,2  and  " final  judgments  and 
decrees"  were  provided  for,  with  a  right  of  appeal  to  the 
Supreme  Court,  but  since  it  was  further  provided  that 
money  on  such  claims  should  not  be  paid  "till  after  an 
appropriation  therefor  shall  be  estimated  for  by  the  Secre- 
tary of  the  Treasury,"  it  was  held  that  the  proceedings 
under  the  act  were  not  judicial,  and  the  Supreme  Court, 
therefore,  refused  to  entertain  an  appeal.3  By  act  of  1883 
the  Houses  of  Congress  and  their  committees,  and  any 
executive  department,  before  which  a  claim  is  pending  are 
authorized  to  refer  such  claims  to  the  Court  of  Claims,  not, 
however,  for  adjudication,  but  merely  for  the  purpose  of 
obtaining  a  report.4  By  later  legislation,  however,  the 
Court  of  Claims  is  given  power  to  render  final  judgment 
with  regard  to  claims  founded  upon  the  Constitution  or 
laws  of  the  United  States  (except  for  pensions),  or  upon 
regulations  of  the  executive  departments,  or  upon  contracts 
express  or  implied  with  the  government,  or  for  damages  in 
cases  not  sounding  in  tort,  where  the  claimant  would  be 
entitled  to  redress  in  a  court  of  law,  equity  or  admiralty  if 
the  United  States  were  suable. s  When  acting  under  these 
provisions  the  court  is  clearly  acting  judicially. 6  It  may  still, 

1 10  Stat.  612. 

2  Act  of  March  3,  1863,  12  Stat.  765. 

3  Gordon  v.  United  States  (1864)  2  Wallace  561,  and  117  U.  S.  697. 

4  Act  of  March  3,  1883,  22  Stat.  485. 
s  Act  of  March  3,  1887,  24  Stat.  505. 

6  It  has  also  from  time  to  time  been  given  authority  to  act  in  a  judicial 
capacity  by  special  legislation,  and  where  it  acts  judicially  the  Supreme 
Court  will  entertain  an  appeal.  DeGroot  v.  United  States  (1866)  5 
Wallace  419. 


§  55  THE  JUDICIARY  139 

however,  be  called  upon  by  Congress  or  the  executive 
departments  for  reports  outside  of  the  above  sphere  of  action 
and  in  making  such  reports  it  as  clearly  acts  nonjudicially. 
No  objection  has  been  made  to  investing  this  tribunal, 
originally  n  on  judicial  in  character,  with  judicial  functions, 
and  it  would  seem  that  the  only  objection  which  might  be 
made  would  be  that  the  members  of  the  court  being  origi- 
nally in  their  nature  commissioners  should  be  newly  com- 
missioned as  judges.  In  United  States  v.  Ferreira1  the  court 
raised,  though  it  did  not  answer  the  question  whether 
Congress  might  authorize  judges  to  act  as  commissioners  to 
hear  claims,  on  the  ground  that  Congress  has  no  authority 
to  make  appointments  of  government  officers.  Under  the 
earlier  Act  of  1792,  however,  all  of  the  judges  seemed  to 
think  that  if  Congress  had  intended  the  judges  to  act  as 
commissioners  they  might  legally  have  done  so. 2  It  would 
seem  that  an  officer  already  duly  appointed  may  be  vested 
by  Congress  with  added  powers,3  although  there  might  be 
some  question  as  to  whether  he  was  bound  to  exercise  them. 
§55.  Legislative  Control  of  Pending  Actions.  The  doc- 
trine of  the  "separation  of  powers"  of  the  executive,  legis- 
lative and  judicial  branches  of  the  government  is  fundamen- 
tal in  the  American  theory  of  constitutional  govern- 
ment. 4  This  does  not  mean  an  absolute  separation,  for  we 
find  the  President  taking  part  in  legislation  through  his 
veto  and  his  recommendations  to  the  legislature,  the 
legislature  acting  as  a  court  in  impeachment  proceedings, 
and  the  courts  reviewing  the  acts  of  the  legislature  and  of 
administrative  officers,  but  it  does  mean  that  no  branch  of 
the  government,  except  as  permitted  by  the  Constitution, 
shall  usurp  any  of  the  essential  functions  of  any  other 
branch.  Therefore,  "legislatures  cannot  set  aside  the 
judgments  of  courts,  compel  them  to  grant  new  trials/order 

1  (1851)  13  Howard  40. 

2  Notes  to  Hayburn's  Case  (1792)  2  Dallas  409,  and  to  United  States 
v.  Ferreira  (1851)  13  Howard  40,  52. 

3  Shoemaker  v.  United  States  (1893)  147  U.  S.  282. 

4  See  the  full  discussion  of  this  doctrine  in  The  Federalist,  Nos.  47  to  51. 


140       THE  AMERICAN  CONSTITUTION       §  56 

the  discharge  of  offenders,  or  direct  what  steps  shall  be  taken 
1  in  the  progress  of  a  judicial  inquiry. ' '  x  But  the  court  in  the 
same  sentence  went  on  to  say  that  "the  grant  of  a  new 
remedy  by  way  of  review  has  been  often  sustained."2  So 
after  final  judgment  an  appeal  to  an  existing  tribunal  may 
be  provided  for  or  a  new  tribunal  may  be  created  for  the 
r- purpose  of  reviewing  a  given  class  of  cases.3  While  the 
granting  a  new  trial  is  essentially  a  judicial  function,  the 
providing  that  an  appeal  may  be  taken  in  a  certain  class  of 
cases  is  not.  On  the  other  hand,  of  course,  the  hearing  of  an 
appeal  would  be.  Appellate  jurisdiction  may  be  taken  from 
a  court  in  which  it  has  previously  been  vested,  and  this  is 
true  even  with  regard  to  the  Supreme  Court,  and  as  to  a 
proceeding  already  pending.4 

§56.  Punishment  of  Contempts.  The  Supreme  Court 
has  said : 

' '  The  power  to  punish  for  contempts  is  inherent  in  all 
courts;  its  existence  is  essential  to  the  preservation  of 
order  in  judicial  proceedings,  and  to  the  enforcement  of 
the  judgments,  orders  and  writs  of  the  courts,  and  conse- 

1  Stephens  v.  Cherokee  Nation  (1899)  174  U.  S.  445;  and  see  Cooley's 
Constitutional  Limitations  (7th  ed.),  137  et  seq.,  for  state  decisions  on 
these  points. 

"Citing  Calder  v.  Bull  (1798)  3  Dallas  386;  Sampayreac  v.  United 
States  (1833)  7  Peters  222;  Freeborn  v.  Smith  (1864)  2  Wallace  160; 
Garrison  v.  City  of  New  York  (1874)  21  Wallace  196;  Freeland  v.  Wil- 
liams (1889)  131  U.  S.  405;  Essex  Pub.  Rd.  Board  v.  Skinkle  (1891)  140 
U.  S.  334- 

3  Wallace  v.  Adams  (1907)  204  U.  S.  415.    Where  a  right  of  appeal 
existed  and  has  expired  or  where  there  was  no  right  of  appeal,  some  state 
courts  have  held  that  a  right  of  appeal  cannot  thereafter  be  granted  by 
the  legislature,  which  would  affect  a  judgment  for  damages  or  otherwise 
with  regard  to  property,  since  this  would  be  contrary  to  the  due  process 
plause.     See  Germania  Savings  Bk.  v.  Suspension  Bridge  (1899)  159 
N.  Y.  362;  Hill  v.  Sunderland  (1831)  3  Vt.  507.    But  the  Supreme  Court 
would  seem  to  consider  any  orderly  judicial  method  for  the  righting  of  an 
erroneous  judgment  to  constitute  due  process.    Sampayreac  i>.  United 
States  (1833)  7  Peters  222;  Freeland  v.  Williams  (1889)  131  U.  S.  405. 
See  also  Page  v.  Matthews  (1867)  40  Ala.  547. 

4  Ex  parte  McCardle  (1868)  7  Wallace  506. 


§  56  THE  JUDICIARY  141 

quently  to  the  due  administration  of  justice.  The 
moment  the  courts  of  the  United  States  were  called  into 
existence  and  invested  with  jurisdiction  over  any  subject, 
they  became  possessed  of  this  power."1 

By  a  statute  passed  in  1831 2  the  power  of  the  federal  courts 
to  summarily  punish  for  contempts  is  restricted  to  cases 

"of  misbehavior  of  any  person  in  their  presence,  or  so 
near  thereto  as  to  obstruct  the  administration  of  justice, 
the  misbehavior  of  any  of  the  officers  of  said  courts  in  their 
official  transactions,  and  the  disobedience  or  resistance  by 
any  such  officer,  or  by  any  party,  juror,  witness,  or  other 
person  to  any  lawful  writ,  process,  order,  rule,  decree,  or 
command  of  the  said  courts." 

In  ex  parte  Robinson3  the  court  held  that  since  Congress 
creates  the  inferior  federal  courts  and  defines  their  juris- 
diction, it  may  limit  their  authority  to  summarily  punish 
for  contempt.  The  court,  however,  throws  out  this  impor- 
tant hint :  "  The  act,  in  terms,  applies  to  all  courts;  whether 
it  can  be  held  to  limit  the  authority  of  the  Supreme  Court, 
which  derives  its  existence  and  powers  from  the  Constitu- 
tion, may  perhaps  be  a  matter  of  doubt."4  This  question 
has  not  been  more  definitely  passed  upon,  but  it  is  interest- 
ing to  note  that  in  a  comparatively  recent  statute  amending 
the  Anti-Trust  Law, 5  in  which  certain  limitations  are  placed 
upon  the  power  to  summarily  punish  for  contempts,  the 
operation  of  the  statute  is  by  its  terms  restricted  to  the 
District  Courts  and  to  the  courts  of  the  District  of 
Columbia. 6 

1  Ex  parte  Robinson  (1873)  19  Wallace  505,  510. 

2  The  provisions  of  this  statute  are  now  incorporated  in  Judicial  Code, 
sec.  268. 

3  (1873)  19  Wallace  505.  4  Ibid.,  510. 

s  Act  of  Oct.  15,  1914,  chap.  323,  sees.  21  to  25,  38  Stat.  738. 

6  The  majority  of  cases  in  the  state  courts  have  held  that  the  legis- 
lature cannot  restrict  or  take  away  the  inherent  power  of  the  courts  to 
punish  for  contempts,  though  some  have  recognized  the  validity  of  such 
legislation,  generally  without  giving  the  question  much  consideration. 
Most  of  these  latter  cases  deal  with  lower  courts  which  are  not  of  con- 


142       THE  AMERICAN  CONSTITUTION       §  57 

§57.  Judicial  Power  to  Suspend  Sentences.  The  question 
whether  a  court  may  in  a  criminal  case  suspend  sentence 
during  good  behavior,  so  as  to  permanently  exempt  from 
punishment,  is  one  as  to  which  different  opinions  have  been 
expressed  by  the  state  courts.  The  right  has  recently  been 
passed  upon  adversely  by  the  Supreme  Court  of  the  United 
States,  as  far  as  federal  courts  are  concerned.1  That  tri- 
bunal declared  that  there  is  no  such  right  inherent  in  a 
court  of  law,  but  that  the  right  to  create  crimes  and  estab- 
lish punishments  is  under  the  Federal  Constitution  a  legis- 
lative right.  It  was  pointed  out  that  the  English  courts 
under  the  common  law  never  exercised  such  a  right — the 
farthest  that  they  went  was  to  suspend  sentence  tempo- 
rarily if  justice  seemed  to  demand  further  legal  proceedings 
or  an  appeal  to  executive  clemency.  It  is  shown  in  a  full 
review  of  the  state  decisions  that  a  majority  of  state  courts 
deny  the  right  contended  for,  though  a  few  have  recognized 
it.  The  only  case  which  had  been  decided  in  the  lower 
federal  courts  denied  the  rights, 2  but  the  court  admitted  that 
some  of  the  federal  courts  had,  nevertheless,  engaged  ex- 
tensively in  the  practice.  It  is  interesting  that  as  a  result 
of  this  decision  President  Wilson  granted  some  five  thousand 
pardons  to  persons  who  had  been  released  under  suspended 
sentences  by  federal  courts. 

stitutional  creation.  The  distinction  between  constitutional  and  non- 
constitutional  courts,  suggested  by  the  Supreme  Court,  will  reconcile 
many  of  the  cases,  though  frequently  not  referred  to  in  them.  See  notes 
in 36  L.R.  A.  254,  and  4  Col.  L.  Rev.  65.  Courts  generally  recognize  the 
right  of  the  legislature  to  regulate  the  punishment  for  contempts.  See 
note  in  6  Col.  L.  Rev.  199. 

1  Ex  parte  United  States  (1916)  242  U.  S.  27. 

a  United  States  v.  Wilson  (1891)  46  Fed.  748;  though  the  existence  of 
the  power  had  been  maintained  in  the  District  of  Columbia.  Miller  v. 
United  States  (1913)  41  App.  D.  C.  52. 


CHAPTER  VI 

GENERAL  CHARACTER  AND  ORGANIZATION  OF  CONGRESS 

§58.  Legislative  Power  and  the  Separation  of  Powers.  The 
First  Article  of  the  Constitution  of  the  United  States  is  con- 
cerned with  the  legislative  branch  of  the  national  government, 
and  the  first  section  of  that  article  declares  that  "all  legisla- 
tive powers  herein  granted  shall  be  vested  in  a  Congress 
of  the  United  States."  The  principle  of  the  "separation  of 
powers"  of  the  executive,  legislative,  and  judicial  branches 
of  the  government  is  fundamental  in  the  American  theory 
of  constitutional  government.1  With  it,  to  be  sure,  goes 
also  a  system  of  checks  of  one  branch  of  government  upon 
the  others,  as,  for  instance,  the  President's  power  to  veto 
legislation  and  to  appoint  federal  judges,  the  power  of  Con- 
gress to  impeach  the  President  and  the  members  of  the 
judiciary,  and  the  power  of  the  federal  courts  to  declare 
legislation  unconstitutional,  and  to  restrain  executive 
officers  from  doing  unconstitutional  or  illegal  acts.  Not- 
withstanding this  certain  degree  of  intermingling  of  spheres 
of  action,  no  branch  of  the  government,  except  as  permitted 
by  the  Constitution  itself,  may  constitutionally  usurp  any 
of  the  essential  functions  of  any  other  branch.  As  we  have 
seen,  Congress  cannot  make  appointments  except  as  ex- 
pressly authorized  in  the  Constitution, 2  nor  can  it  interfere 
with  the  essential  judicial  functions  of  the  courts. 3  On  the 
other  hand  it  is  equally  clear  that  neither  the  President  nor 
the  federal  judiciary  has  constitutional  authority  to  enact 

1  See  the  full  discussion  of  this  doctrine  in  The  Federalist,  Nos.  47  to  51. 
See  also  W.  Jethro  Brown,  "The  Separation  of  Powers  in  British 
Jurisdictions,"  31  Yale  L.  Jour.,  24. 

2  Sec.  29.  3  Sec.  55. 

143 


144       THE  AMERICAN  CONSTITUTION       §  59 

laws.1  We  not  infrequently  hear  the  term  "judge-made 
law"  applied  when  a  court  decides  some  new  point,  and 
especially  when  a  decision  is  thought  to  embody  a  depar- 
ture from  preexisting  practices  or  theories.  But  in  such 
cases  judges  never  purport,  at  least,  to  establish  new  prin- 
ciples of  conduct,  but  always  declare  that  they  are  but 
applying  existing  principles  to  new  facts.  It  cannot  be 
denied,  that  frequent  repetition  of  this  process  does  often 
result  in  a  development  of  the  principles  relied  upon  by  the 
courts  to  cover  situations  not  within  their  original  purview. 
Still  there  is  nothing  startlingly  new  in  this  fact.  It  is  but  a 
continuation  of  the  process  by  which  the  whole  body  of  the 
English  common  law  has  been  built  up.  Legislation,  on  the 
other  hand,  is  the  avowed  and  authoritative  promulgation 
of  new  principles  or  rules  to  be  applied  to  future  conduct. 

§59.  Implied  Powers  and  Constitutional  Interpretation. 
The  Articles  of  Confederation  contained  the  provision  that, 
"Each  State  retains  .  .  .  every  power,  jurisdiction  and 
right,  which  is  not  by  this  confederation  expressly  delegated 
to  the  United  States,  in  Congress  assembled."2  The  Con- 
stitution when  adopted  contained  no  such  provision.  In- 
stead it  incorporated  a  number  of  prohibitions  of  state 
action,  an  enumeration  of  powers  which  were  to  vest  in  the 
federal  government,  and  certain  limitations  which  were  to 
rest  upon  this  new  government.  If  it  had  stopped  here  it 
seems  clear  that  the  States  would  have  retained  such  of  their 
original  powers  as  had  not  been  prohibited  to  them,  or  trans- 
ferred by  the  Constitution  to  the  federal  government,  and 
that,  on  the  other  hand,  the  federal  government  would  have 
had  all  incidental  powers  reasonably  necessary  to  carry  out 
the  broad  powers  expressly  granted. 3  These  matters,  how- 
ever, were  not  left  in  doubt.  The  Tenth  Amendment, 

1  Reagon  v.  Farmers'  L.  &  T.  Co.  (1894)  154  U.  S.  362,  400;  Express 
Cases  (1886)  117  U.  S.  I,  29;  Atchison  T.  &  S.  F.  R.  Co.  v.  Denver  & 
N.  O.  R.  Co.  (1884)  no  U.  S.  667,  682;  Interstate  Com.  Com.  v.  Cin- 
cinnati N.  O.  &  T.  P.  R.  Co.  (1897)  167  U.  S.  479,  499. 

2  Art.  II. 

3  The  Federalist,  Nos.  33  and  44;  Story  on  the  Constitution  (5th  ed.)  sec. 
1237. 


§  59         ORGANIZATION  OF  CONGRESS         145 

adopted  immediately  after  the  Constitution  went  into  effect, 
declares  that,  ''The  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  the 
States  are  reserved  to  the  States  respectively  or  to  the 
people,"  while  the  implied  powers  of  Congress  gained  ex- 
press recognition  in  the  body  of  the  Constitution,  as  follows : 

"The  Congress  shall  have  power  ...  to  make  all 
laws  which  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  Constitution  in  the  Government  of  the 
United  States  or  in  any  department  or  officer  thereof."1 

This  latter  provision  was  brought  forward  in  the  Con- 
stitutional Convention  by  the  Committee  of  Detail,  and  was 
accepted  without  dissent.  There  was  not  even  any  dis- 
cussion raised  by  it  except  in  the  form  of  a  suggestion  made 
by  Madison  and  Pinckney  that  the  power  to  "establish  all 
offices"  should  be  included,  "it  appearing  to  them  liable  to 
cavil  that  the  latter  was  not  included  in  the  former."  But 
other  members  urged  that  the  amendment  was  not  necessary, 
and  it  was  voted  down. 2  When  the  Constitution  went  to 
the  state  conventions  for  ratification  this  provision  did, 
however,  stir  up  very  violent  criticism,  being  pointed  to  as 
giving  powers  to  the  national  government  which  would 
make  possible  all  sorts  of  tyranny  and  usurpations.  These 
critics  were  answered  with  some  impatience  by  Hamilton 
in  The  Federalist.*  He  pointed  out  that  the  paragraph  in 
question  did  nothing  more  than  express  what  would  have 
been  implied  without  it,  and  that  the  only  alternative 
provisions  would  have  been  an  enumeration  of  all  of  the 
detailed  powers  which  were  to  be  exercised  in  carrying  out 
the  main  provisions  which  would  have  been  humanly  im- 
possible,4 or  an  enumeration  of  all  of  the  powers  which  were 

1  Art.  I,  sec.  8,  par.  18. 

2  Farrand,  The  Records  of  the  Federal  Convention,  vol.  ii,  p.  345. 

3  No.  33,  and  again  in  No.  44. 

*  See  also  on  this  point  the  statement  of  Chief  Justice  Marshall  in 
M'Culloch  v.  Maryland  (1819)  4  Wheaton  316,  407. 


146       THE  AMERICAN  CONSTITUTION       §  59 

not  to  be  exercised,  which  would  have  been  as  impracticable, 
or  to  limit  Congress  to  those  powers  elsewhere  expressly 
given,  which  if  literally  interpreted  as  not  giving  them  any 
incidental  powers  to  carry  out  those  fundamental  powers 
would  have  entirely  tied  the  hands  of  the  government. 

The  Constitution  having  been  adopted,  those  who  feared 
the  central  government  fell  back  upon  a  strict  construction 
of  the  grants  of  power  which  it  contains,  and  insisted  par- 
ticularly that,  when  Congress  was  given  power  to  "make  all 
laws  which  shall  be  necessary  and  proper"  for  carrying  out 
the  fundamental  powers  which  were  enumerated,  it  was  only 
intended  to  invest  Congress  with  such  incidental  powers  as 
were  absolutely  necessary  to  the  exercise  of  the  other  powers 
expressly  granted.  This  contention  came  before  the 
Supreme  Court  in  the  case  of  M'Culloch  v.  Maryland1  in 
1819,  was  brilliantly  argued  by  Webster,  Pinckney,  Wirt, 
Luther  Martin,  Hopkinson,  and  Walter  Jones,  and  the  de- 
cision upon  it  was  written  by  Chief  Justice  Marshall  for  a 
unanimous  court.  Congress  had  authorized  the  incorpora-  ' 
tion  of  the  second  bank  of  the  United  States,  which  had  a 
branch  in  Baltimore,  while  Maryland  had  levied  a  tax  upon 
all  banks  established  without  authority  from  the  State. 
The  two  questions  were  whether  Congress  had  authority  *" 
to  establish  such  a  bank,  and  whether  Maryland  could  tax 
it.  It  was  contended  that  the  word  "necessary"  controlled 
the  whole  sentence,  and  limited  the  power  to  pass  laws  for 
the  execution  of  the  granted  powers  ' '  to  such  as  are  indis- 
pensable, and  without  which  the  power  would  be  nugatory." 
Marshall  pointed  out  that  the  paragraph  in  question  was 
not  put  among  the  limitations  upon  legislative  powers,  but 
among  the  granting  provisions,  and,  therefore,  could  not 
have  been  meant  to  give  Congress  less  power  than  would 
have  been  possessed  without  it ;  that  "necessary"  in  common 
parlance  does  not  mean  "absolutely  necessary,"2  but 

X4  Wheaton,  316.  The  story  of  this  litigation  and  its  setting  are 
graphically  presented  in  Beveridge's  Life  of  John  Marshall,  vol.  iv,  chap. 
6. 

2  The  Constitution  does  in  another  place  contain  this  phrase,  where  it 


§  59         ORGANIZATION  OF  CONGRESS          147 

"needful, "  "conducive  to " ;  and  that  the  word  necessary  is, 
furthermore,  coupled  witjr  the  word  ''proper,"  as  being  a 
word  of  similar  import.  * 

"The  result  of  the  most  careful  and  attentive  considera- 
tion bestowed  upon  this  clause  is,  that  if  it  does  not 
enlarge,  it  cannot  be  construed  to  restrain  the  powers  of 
Congress,  or  to  impair  the  right  of  the  legislature  to  exer- 
cise its  best  judgment  in  the  selection  of  measures  to 
carry  into  execution  the  constitutional  powers  of  the 
government.  .  .  .  Let  the  end  be  legitimate,  let  it  be  ^ 
within  the  scope  of  the  Constitution,  and  all  means  which 
are  appropriate,  which  are  plainly  adapted  to  that  end, 
which  are  not  prohibited,  but  consist  with  the  letter  and 
spirit  of  the  Constitution,  are  constitutional."1 

As  a  result  of  this  construction  the  court  held  that  it  was 
within  the  power  of  Congress  to  incorporate  a  bank  for  the   ' 
purpose  of  carrying  out  its  fiscal  operations. 

The  power  vested  in  Congress  to  ' '  make  all  laws  which 
shall  be  necessary  and  proper"  for  carrying  into  effect  the 
powers  elsewhere  expressly  granted,  is,  of  course,  open  to 
abuse,  but  so  are  all  of  the  other  powers.  When  Congress 
oversteps  its  legitimate  bounds  the  public  may  make  their 
disapproval  effective  through  the  ballot,  while  any  patent 
abuse  will  be  nullified  by  the  Supreme  Court  through  its 
power  to  refuse  recognition  to  unconstitutional  legislation. 
Where  the  language  of  the  Constitution  is  clear  and  un- 
equivocal, the  court  will  enforce  its  terms  even  though  the 
result  may  not  be  that  which  was  contemplated  by  its 
framers,2  but,  where  a  term  or  phrase  is  open  to  different 
interpretations,  the  meaning  intended  to  be  attached  to  it 

prohibits  States  from  laying  "imposts,  or  duties  on  imports  or  exports, 
except  what  may  be  absolutely  necessary  for  executing  its  inspection 
laws."  Art.  I,  sec.  10. 

1  M'Culloch  v.  Maryland  (1819)  4  Wheaton  316,  420,  421. 

-  Chisholm  v.  Georgia  (1793)  2  Dallas  419,  in  which  it  was  held  that  a 
citizen  of  one  State  might  sue  another  State,  notwithstanding  that  the 
contrary  view  was  expressed  in  The  Federalist.  See  sec.  42. 


148       THE  AMERICAN  CONSTITUTION       §  59 

by  its  framers, z  or  the  purposes  intended  to  be  effected  by 
it,2  will  be  taken  into  consideration.  When,  however, 
exigencies  arise  which  were  not  in  the  contemplation  of  the 
framers  of  the  Constitution,  the  fact  that  they  had  no 
affirmative  intention  that  it  should  cover  such  a  case  will 
not  prevent  such  a  case  being  brought  within  it.  Since  it 
was  intended  not  only  for  the  period  in  which  it  was  adopted, 
but  for  the  future  also,  it  should  in  such  cases  be  interpreted 
according  to  the  view  which  reasonable  men  would  take  of 
it  in  the  light  of  existing  circumstances. 3 

1  Cohens  v.  Virginia  (1821)  6  Wheaton  264,  418. 

3  Prigg  v.  Pennsylvania  (1842)  16  Peters  539,  610,611. 

3  In  M'Culloch  v.  Maryland  (1819)  4  Wheaton  316,  407,  415,  Chief 
Justice  Marshall  said:  "In  considering  this  question,  then,  we  must 
never  forget,  that  it  is  a  constitution  we  are  expounding.  This  provision 
is  made  in  a  Constitution  intended  to  endure  for  ages  to  come,  and, 
consequently,  to  be  adapted  to  the  various  crises  of  human  affairs." 
See  also  the  statement  of  Marshall  in  Dartmouth  College  v.  Woodward 
(1819)  4  Wheaton  518,  644,  and  the  statement  of  Justice  Story  in 
Martina.  Hunter's  Lessee  (1816)  i  Wheaton  304,  326,  and  that  of  Jus- 
tice Holmes  in  Missouri  v.  Holland  (1920)  252  U.  S.  416,  433. 

President  Roosevelt  gave  his  support  to  the  proposition,  advanced  by 
James  Wilson  of  Pennsylvania  in  the  early  days  of  American  history, 
that  the  federal  government  must  have  by  implication  power  over  any 
subject  from  which  it  is  not  expressly  excluded,  and  which  is  not  ex- 
pressly given  to  the  States,  if  it  cannot  be  adequately  dealt  with  by  the 
States.  See  Willoughby  on  the  Constitution,  sec.  27.  Such  a  doctrine 
has  been  held  to  be  contrary  to  the  Tenth  Amendment.  Kansas  v. 
Colorado  (1907)  206  U.  S.  46.  It  has  also  been  urged  that  powers 
expressly  denied  to  the  States  belong  to  the  United  States  by  reasonable 
implication,  though  not  expressly  given.  Tiedeman,  The  Unwritten 
Constitution  of  the  United  States,  chap.  1 1.  But  in  the  case  last  cited  the 
court  said  that  "all  powers  of  a  national  character  which  are  not  dele- 
gated to  the  national  government  by  the  Constitution  are  reserved  to 
the  people  of  the  United  States,"  by  force  of  the  Tenth  Amendment. 
The  Legal  Tender  Cases  are,  however,  rather*  hard  to  reconcile  with  this 
proposition.  See  sec.  83. 

At  the  time  of  the  Revolution  the  doctrine  of  natural  rights  held 
strong  sway,  and  it  is  not  surprising  that  in  some  early  cases  it  is  sug- 
gested that  legislation  not  otherwise  forbidden  might  be  unconstitutional 
if  in  conflict  with  such  rights.  (See,  for  instance,  Calder  v.  Bull  (1798)  3 
Dallas  386,  387  to  389.)  It  has  also  been  suggested  at  times  that  legisla- 
tion might  be  unenforceable  because  in  conflict  with  the  spirit  of  the 


§  6o         ORGANIZATION  OF  CONGRESS         149 

No  exhaustive  attempt  will  be  made  to  enumerate  here 
the  cases  in  which  the  doctrine  of  implied  powers  has  been 
applied,  but  the  following  quotation  will  give  some  illus- 
trative examples1: 

"And  it  is  important  to  observe  that  Congress  has  often 
exercised,  without  question,  powers  that  are  not  expressly 
given  nor  ancillary  to  any  single  enumerated  power. 
Powers  thus  exercised  are  what  are  called  by  Judge  Story 
in  his  Commentaries  on  the  Constitution,  resulting  powers, 
arising  from  the  aggregate  powers  of  the  government.  He 
instances  the  right  to  sue  and  make  contracts.  Many 
others  might  be  given.  The  oath  required  by  law  from 
officers  of  the  government  is  one.  So  is  building  a  capital 
or  a  presidential  mansion,  and  so  also  is  the  penal  code.  .  .  . 

"...  Under  the  power  to  establish  post  offices  and 
postroads  Congress  has  provided  for  carrying  the  mails, 
punishing  theft  of  letters,  and  mail  robberies,  and  even 
for  transporting  the  mails  to  foreign  countries.  Under 
the  power  to  regulate  commerce,  provision  has  been  made 
by  law  for  the  improvement  of  harbors,  the  establishment 
of  observatories,  the  erection  of  lighthouses,  breakwaters 
and  buoys,  the  registry,  enrollment,  and  construction  of 
ships,  and  a  code  has  been  enacted  for  the  government  of 
seamen." 

Many  other  examples  will  be  noted  as  we  proceed  with  our 
general  discussion. 2 

§60.  Delegation  of  Legislative  Power.  It  is  universally 
recognized  as  a  fundamental  principle  of  American  con- 
Constitution.  (See,  for  instance,  Legal  Tender  Cases  (1870)  12  Wallace 
457,  544.)  Probably  in  none  of  these  cases,  however,  was  either  doctrine 
advanced  as  the  sole  ground  of  decision,  and  both  have  quite  lost  favor 
in  recent  years.  Probably  all  that  was  ever  really  intended  by  either  is 
now  sufficiently  safeguarded  by  the  due  process  clauses  of  the  Fifth  and 
Fourteenth  Amendments. 

1  Legal  Tender  Cases  (1870)  12  Wallace  457,  535  to  537. 

2  Perhaps  the  most  extreme  examples  are  to  be  found  in  the  issue 
of  legal  tender  notes  (see  sec.  83),  and  the  acquisition  of  territory  by 
purchase  (see  sec.  100). 


150       THE  AMERICAN  CONSTITUTION       §  60 

stitutional  law  that  the  legislative  branch  of  the  government 
cannot  delegate  its  essential  legislative  function  to  any 
other  agency. T  This  results  from  the  clear  declarations  in  our 
constitutions,  both  federal  and  state,  that  all  legislative 
power  shall  vest  in  the  law-making  bodies  which  are  thereby 
created. 

This  does  not  mean,  however,  that  Congress,  for  instance, 
cannot  delegate  any  of  the  powers  which  it  has  the  right  to 
exercise.  A  distinction  is  drawn  between  those  powers 
which  are  essentially  legislative,  and  those  which  are  not. 
As  said  by  Chief  Justice  Marshall : 

' '  It  will  not  be  contended  that  Congress  can  delegate 
to  the  courts,  or  to  any  other  tribunal  powers  which  are 
strictly  or  exclusively  legislative.  But  Congress  may 
certainly  delegate  to  others  powers  which  the  legislature 
may  rightfully  exercise  itself."2 

The  establishment  of  principles  or  rules  of  conduct  is  the 
essential  function  of  a  law-making  body,  and  this  power 
cannot  be  delegated,  but  the  power  to  apply  principles  and 
rules,  once  established  by  the  legislature,  to  facts  as  they 
may  arise  may  be  vested  by  the  legislature  in  some  other 
governmental  agency,  notwithstanding  the  fact  that  the 
legislature  might  itself  have  made  such  application. 

"The  true  distinction  ...  is  between  the  delegation 
of  power  to  make  the  law,  which  necessarily  involves  a 
discretion  as  to  what  it  shall  be,  and  conferring  authority 
or  discretion  as  to  its  execution,  to  be  exercised  under 
and  in  pursuance  of  the  law.  The  first  cannot  be  done; 
to  the  latter  no  valid  objection  can  be  made."3 

1  Since  the  English  Parliament  is  unfettered  by  any  constitutional 
limitations  it  follows  of  course  that  it  may  delegate  such  of  its  legislative 
functions  as  it  pleases  to  other  agencies.  It  is  also  held  that  the  dominion 
legislatures  may  delegate  their  legislative  functions.  Moore,  The  Com- 
monwealth of  Australia,  130. 

3  Wayman  v.  Southard  (1825)  10  Wheaton  i,  42. 

s  Field  v.  Clark  (1892)  143  U.  S.  649,  693,  quoting  from  Cincinnati 
W.  &  Z.  R.  R.  Co.  v.  Commissioners  (1852)  I  Ohio  St.  77,  88. 


§  6o         ORGANIZATION  OF  CONGRESS          151 

There  is,  however,  one  exception  to  the  rule  against  the 
delegation  of  legislative  power  which  is  as  widely  recognized 
as  the  rule  itself.  This  exception  is  in  favor  of  the  grant  of 
the  power  of  local  self-government  to  municipalities.1  Its 
real  basis  is  historical,  resting  upon  the  immemorial  Anglo- 
Saxon  practice  of  leaving  to  each  local  community  the 
control  of  local  affairs.  This  practice  is  conceived  to  be  so 
integral  a  part  of  the  Anglo-Saxon  system  of  government 
as  to  justify  the  grant  to  municipalities  of  the  control  of 
local  affairs,  in  the  absence  of  any  express  constitutional 
prohibition.  By  force  of  this  doctrine  congressional  dele- 
gation of  very  extensive  powers  of  self-government  to  the 
District  of  Columbia  and  the  territories  has  been  upheld.2 
Municipalities  have,  however,  no  inherent  power  of  local 
self-government,  but  must  show  an  actual  grant  of  such 
power  from  the  State.3 

In  conformity  with  the  principle  stated  above  it  is  con- 
stitutional for  Congress  to  enact  legislation  with  a  proviso 
either  that  its  operation  shall  be  suspended,  or  that  its 
provisions  shall  only  go  into  effect  upon  the  happening  of 
certain  specified  events,  which  are  to  be  ascertained  by  some 
administrative  officer.  The  non-intercourse  Act  of  1809 
was  an  example  of  the  former  sort  of  proviso.  By  its  terms 
importation  from  France  and  Great  Britain  was  forbidden, 
but  if  either  nation  ceased  to  violate  the  neutral  commerce 
of  the  United  States  the  President  was  authorized  to  make 
proclamation  to  that  effect,  after  which  intercourse  with  the 
nation  in  question  would  be  lawful.  This  statute  was  up- 

1  Cooley's  Constitutional  Limitations  (7th  ed.),  261  to  265;  Dillon, 
Municipal  Corporations  (5th  ed.),  sec.  573.  And  it  is  generally  held  that 
this  may  be  accomplished  by  leaving  to  the  electors  of  a  locality  the 
determination  by  popular  vote  as  to  whether  a  statute  affecting  local 
affairs  shall  apply  in  that  locality,  Dillon,  Municipal  Corporations  (5th 
ed.),  sec.  69.  See  a  note  in  j  Cor.  L.  Quar.,  277,  for  discussion  and 
collection  of  authorities. 

aHornbuckle  v.  Toombs  (1874)  18  Wallace  648;  Stoutenburgh  v. 
Hennick  (1889)  129  U.  S.  141 ;  see  further  sees.  101  and  105. 

3  Cooley's  Constitutional  Limitations  (7th  ed.),  266;  Dillon,  Municipal 
Corporations  (5th  ed.),  sec.  587. 


152       THE  AMERICAN  CONSTITUTION       §  60 

held  by  the  Supreme  Court  in  The  Brig  Aurora.1-  By  the 
Tariff  Act  of  1890  it  was  declared  that,  in  order  to  secure 
reciprocal  trade  with  countries  producing  and  exporting 
sugar,  molasses,  coffee,  tea,  and  hides,  or  any  of  these  articles, 
the  free  importation  of  such  goods  therein  provided  for 
should  be  suspended,  whenever  the  President  was  satisfied 
that  the  exporting  countries  were  imposing  duties  upon 
American  products  which  were  reciprocally  unequal  and 
unreasonable,  and  that  under  such  circumstances  certain 
duties  specified  should  be  imposed  upon  the  goods  named. 
This  was  attacked  as  a  delegation  of  legislative  authority 
to  the  President,  but  the  Supreme  Court  refused  to  adopt 
this  view,  saying2: 

"...  Legislative  power  was  exercised  when  Congress 
declared  that  the  suspension  should  take  effect  upon  a 
named  contingency.  What  the  President  was  required 
to  do  was  simply  in  execution  of  the  act  of  Congress.  It 
was  not  the  making  of  law.  He  was  the  mere  agent  of  the 
law-making  department  to  ascertain  and  declare  the 
event  upon  which  its  expressed  will  was  to  take  effect. 
It  was  a  part  of  the  law  itself  as  it  left  the  hands  of  Con- 
gress that  the  provisions,  full  and  complete  in  themselves, 
permitting  the  free  introduction  of  sugars,  molasses, 
coffee,  tea,  and  hides,  from  particular  countries,  should  be 
suspended,  in  a  given  contingency,  and  that  in  case  of 
such  suspensions  certain  duties  should  be  imposed." 

Present  day  conditions  with  their  great  complexity  of 
personal  and  economic  relations,  together  with  the  rapidly 
increasing  governmental  supervision  of  personal,  and  es- 
pecially of  corporate  conduct  in  the  interest  of  the  com- 
munity at  large,  have  made  it  practically  impossible  for 
legislatures  to  provide  for  all  the  detailed  application  of  the 
rules  and  regulations  which  they  adopt.  Furthermore, 
such  application  can  be  much  more  satisfactorily  made  by 
persons  who  are  experts  in  given  fields,  and  who  devote  their 

1  (1813)  7  Cranch  382. 

8  Field  v.  Clark  (1892)  143  U.  S.  649,  683. 


§  60         ORGANIZATION  OF  CONGRESS         153 

time  to  the  consideration  of  the  problems  within  those  fields. 
These  considerations  have  led  legislatures  to  delegate  a 
great  deal  of  the  power  that  they  might  exercise  to  admin- 
istrative officers  and  commissions,  and  this  they  may 
constitutionally  do  as  long  as  they  lay  down  the  guid- 
ing principles,  and  leave  only  to  the  administrative 
agency  the  application  of  such  principles  to  facts  as  they 
arise. 

The  authority  so  delegated  may  be  very  extensive,  and 
the  guiding  principles  which  are  to  govern  may  be  laid  down 
in  very  broad  terms.  In  Union  Bridge  Company  v.  United 
States*  it  was  held  that  Congress  in  pursuance  of  its  control 
of  interstate  commerce  might  prohibit  bridges  over 
navigable  streams  which  constituted  an  impediment 
to  their  navigation,  and  might  leave  to  the  Secretary  of 
War  to  determine  in  each  case  whether  a  bridge  in  question 
was  an  unreasonable  obstruction  of  commerce.  The 
Supreme  Court  has  also  upheld  legislation  for  the  establish- 
ment and  management  of  forest  reservations  upon  public 
lands,  which  provided  that  the  Secretary  of  Agriculture 
might  make  regulations  for  the  occupancy  and  use  of  the 
lands  in  question,  and  for  the  purpose  of  preserving  the 
forests  on  such  reservations  from  destruction. 2  When  the  In- 
terstate Commerce  Commission  was  established  it  was  not 
given  power  to  formulate  rates  and  rules  of  conduct  for  in- 
terstate carriers.3  By  a  later  amendment  of  the  Interstate 
Commerce  Act,  however,  this  power  was  given,  the  act  pro- 
viding merely  in  broad  terms  that  interstate  carriers  should 
not  charge  unreasonable  rates  or  practice  unreasonable 
discrimination,  and  leaving  to  the  commission  to  declare 
what  rates  and  practices  should  be  considered  reasonable. 
Here,  certainly,  extensive  power  is  vested  in  the  commission 
which  might  have  been  exercised  by  Congress,  and  yet  the 

1  (1907)  204  U.  S.  364. 

2  United  States  v.  Grimaudli^jo)  220  U.  S.  506.   See  also  in  re  Kollock 
(1897)  165  U.  S.  526,  and  Butterfield  v.  Stranahan  (1904)  192  U.  S.  470- 

s  Interstate  Comm.  Comm.  v.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co. 
(1897)  167  U.  S.  479- 


154       THE  AMERICAN  CONSTITUTION       §  61 

legislation  was   unhesitatingly    upheld    by    the    Supreme 
Court.1 

§6 1.  Congress  a  Bicameral  Legislature.  The  Conti- 
nental Congress,  established  under  the  Articles  of  Con- 
federation, consisted  of  but  one  house,  to  which  delegates 
were  appointed  annually  in  such  manner  as  the  legislatures 
of  each  State  directed,  and  in  which  each  State  had  a  single 
vote.2  The  legislatures  of  the  various  States,  however, 
were  bicameral,  modelled  upon  the  English  Parliament, 
except  that  membership  in  the  upper  houses  was  not  heredi- 
tary. Pelatiah  Webster,  in  his  plan  of  government,  pub- 
lished in  1783,  approved  of  a  national  legislature  of  two 
chambers. 3  This  feature  was  also  contained  in  the  so-called 
Virginia,  Pinckney,  and  Hamilton  plans,  presented  to  the 
Constitutional  Convention. 4  Only  the  so-called  New  Jersey 
plan  contained  a  proposal  for  the  continuation  of  the  old 
Congress  with  its  single  chamber. 5  In  the  Constitutional 
Convention  there  was  some  support  for  the  New  Jersey  plan 
on  this  point, 6  but  the  majority  was  from  the  first  in  favor 

Interstate  Comm.  Comm.  v.  Illinois  Cent.  R.  R.  Co.  (1910)  215 
U.  S.  452;  Interstate  Comm.  Comm.  v.  Chicago,  R.  I.  &  P.  Ry.  Co. 
(1910)  218  U.S.  88. 

The  breach  of  an  administrative  rule  may  be  made  by  statute  a 
criminal  offense,  in  re  Kollock  (1897)  165  U.  S.  526,  though  such  in- 
tention must  clearly  appear  from  the  legislative  enactment.  United 
States  v.  Eaton  (1892)  144  U.  S.  677.  To  make  the  breach  of  an  ad- 
ministrative rule  a  crime,  and  to  punish  it  as  such  without  a  judicial 
trial  would  be  unconstitutional,  Wong  Wing  v.  United  States  (1896) 
163  U.  S.  228.  But  it  was  held  in  Oceanic  Navigation  Co.  v.  Stranahan 
(1909)  214  U.  S.  320,  that  a  statute  might  constitutionally  provide  for 
the  imposition  by  an  administrative  officer  of  a  penalty  for  the  breach 
of  an  administrative  rule  to  secure  the  efficient  performance  of  such  rule, 
when  the  act  was  not  intended  to  be  made  criminal. 

2  Art.  V. 

3  "A  Dissertation  on  the  Political  Union  and  Constitution  of  the 
Thirteen  United  States  of  North  America,"  contained  in  A  Memorial 
in  Behalf  of  the  Architect  of  Our  Federal  Constitution,  p.  33. 

4  Taylor,  The  Origin  and  Growth  of  the  American  Constitution,  550,  563, 
568,  570. 

slbid.,  580. 

6  Farrand,  The  Records  of  the  Federal  Convention,  vol.  i,  pp.  336  to  350. 


§  62         ORGANIZATION  OF  CONGRESS         155 

of  a  bicameral  legislature,1  and,  therefore,  wrote  into  the 
Constitution  the  provision  that  Congress  should  ' '  consist  of 
a  Senate  and  House  of  Representatives."2 

§62.  Powers  of  the  Two  Houses.  In  all  legislative 
matters  except  the  raising  of  revenue  the  houses  are  equal, 
for  a  measure  may  be  introduced  in  either  house,  each  must 
pass  a  bill  by  majority  vote,  and  in  case  of  a  presidential 
veto  each  must  pass  the  bill  again  by  a  two  thirds  vote.3 
But  with  regard  to  bills  for  raising  revenue  it  is  provided 
that  they  "shall  originate  in  the  House  of  Representatives; 
but  the  Senate  may  propose  or  concur  with  amendments  as  on 
other  bills." 4  This  provision  constituted  part  of  the  arrange- 
ment arrived  at  between  the  large  and  small  States  which 
resulted  in  equal  representation  in  the  Senate,5  and  which 
originally  provided  that  bills  for  raising  and  appropriating 
money  and  for  fixing  salaries  should  originate  in  the  lower 
house  and  should  not  be  amended  in  the  Senate. 6  It  was, 
however,  modified  to  its  present  form  in  the  later  stages  of 
the  Convention.  As  it  appears  in  the  Constitution  it  is  not 
really  a  substantial  limitation  upon  the  Senate  because  of 
that  body's  right  to  amend.  As  we  shall  see  shortly,  in  all 
matters  of  organization  and  discipline,  of  immunities  and 
privileges  the  two  houses  are  on  the  same  footing,  except 
that  the  House  of  Representatives  elects  its  own  presiding 
officer,  while  the  Vice-President  presides  over  the  Senate. 
In  impeachment  proceedings  the  House  impeaches  and  the 
Senate  sits  as  a  court  to  try  the  impeachment. 7  The  Senate 
alone  participates  with  the  President  in  the  making  of 
treaties, 8  and  in  the  filling  of  offices. 9  The  houses  participate 
equally  in  the  amending  of  the  Constitution.10 

1  Ibid,.,  vol.  i,  pp.  20,  46,  48,  225,  228,  235,  349;  350,  353. 
3  Art.  I,  sec.  i. 

3  See  sec.  37. 

4  Const,  of  U.  S.t  art.  I,  sec.  7,  par.  i. 
s  See  sec.  66. 

6  Farrand,  The  Records  of  the  Federal  Convention,  vol.  i,  pp.  523,  526, 
539;  vol.  ii,  pp.  13  to  1 6. 

7  See  sec.  40.  8  See  sec.  33. 

« See  sec.  29.  «  •  See  Chap.  3. 


156       THE  AMERICAN  CONSTITUTION       §  63 

§63.  Election  of  Representatives.*  Although  proposals 
for  the  election  of  members  of  the  House  of  Representatives 
by  the  state  legislatures,2  or  in  such  manner  as  the  state 
legislatures  should  direct,3  had  their  supporters  in  the 
Constitutional  Convention,  the  plan  for  the  popular  elec- 
tion of  representatives  was  generally  accepted  from  the  first. 4 
It  was,  therefore,  provided  in  the  Constitution  that, 

"The  House  of  Representatives  shall  be  composed  of 
members  chosen  every  second  year  by  the  people  of  the 
several  States,  and  the  electors  in  each  State  shall  have 
the  qualifications  requisite  for  electors  of  the  most  numer- 
ous branch  of  the  State  Legislature."5 

1  It  is  interesting  to  compare  the  provisions  in  this  and  the  next 
section  with  those  on  the  same  subjects  in  the  laws  of  the  British  Domin- 
ions. In  Canada  the  House  of  Commons  is  elected  for  five  years  by  the 
people  of  the  province  in  proportion  to  population,  with  provision  for 
decennial  readjustments.  The  qualifications  are  fixed  by  the  provinces, 
and  the  electors  are  the  same  as  those  for  the  provincial  legislature. 
(British  North  American  Act  1867,  sees.  37  to  41.)  In  Australia  there  is 
direct  election  of  the  members  of  the  House  of  Representatives  in  each 
State  in  proportion  to  population,  and  so  that  the  House  shall  be  twice 
as  large  as  the  Senate.  Representatives  are  elected  for  three  years,  it 
being  required  that  they  be  qualified  electors,  twenty-one  years  of  age 
and  native-born  citizens  or  five  years  naturalized.  The  qualification  of 
electors  are  the  same  as  for  the  most  numerous  branch  of  the  state 
legislatures.  (Australian  Constitution  Act,  sees.  24, 26  to  31,  34,  43.)  In 
South  Africa  the  members  of  the  House  of  Assembly  are  directly  elected, 
membership  being  distributed  among  the  States  in  proportion  to  the 
number  of  European  male  adults  in  each,  with  provision  for  periodical 
readjustments.  The  electors  are  those  for  the  legislature  in  each  prov- 
ince until  changed  by  the  Dominion  Parliament.  Members  must  be 
qualified  electors  in  their  States,  residents  of  the  Union  for  five  years, 
and  British  subjects  of  European  descent.  (South  African  Act  1909,  sees. 
32-36,  44.) 

3  Farrand,  The  Records  of  the  Federal  Convention,  vol.  i,  pp.  28,  57, 
353,  36o. 

3  Ibid.,  vol.  i,  pp.  364  and  365. 

4  Ibid.,  vol.  i,  pp.  20,  54,  60,  225,  235,  353,  360. 

sArt.  I,  sec.  2,  par.  i.  Each  territory  has  a  delegate  to  Congress 
with  the  right  of  participating  in  debates  but  not  of  voting.  U.  S.  Rev. 
St.,  sees.  1862  and  1863.  Such  delegates  were  provided  for  in  the 
famous  Ordinance  for  the  government  of  the  Northwestern  Territory  of 


§  63        ORGANIZATION  OF  CONGRESS         157 

It  is  to  be  noted  that  while  the  right  to  vote  for  representa- 
tives is  a  constitutional  right,  the  definition  of  those  in 
whom  that  right  inheres  is  left  to  the  States.  * 

One  of  the  important  compromises  of  the  Constitution, 
required  in  order  to  get  the  support  of  the  delegates  from  the 
slaveholding  States,  was  contained  in  the  provision  that, 

"Representatives  and  direct  taxes  shall  be  apportioned 
among  the  several  States  which  may  be  included  within 
this  Union,  according  to  their  respective  numbers,  which 
shall  be  determined  by  adding  to  the  whole  number  of 
free  persons,  including  those  bound  to  service  for  a  term 
of  years,  and  excluding  Indians  not  taxed,  three  fifths  of 
all  other  persons. ' ' 2 

The  "all  other  persons "  here  referred  to  were,  of  course,  the 
negro  slaves.  The  effects  of  this  compromise  came  to  an 
end  when  slavery  was  abolished  by  the  Thirteenth  Amend- 
ment,3 and  the  second  section  of  the  Fourteenth  Amend- 
ment contains  the  following  provision : 

"  Representatives  shall  be  apportioned  among  the  sev- 
eral States  according  to  their  respective  numbers,  count- 
ing the  whole  number  of  persons  in  each  State,  excluding 
Indians  not  taxed.  But  when  the  right  to  vote  at  any 
election  for  the  choice  of  electors  for  President  and  Vice- 
President  of  the  United  States,  Representatives  in  Con- 
gress, the  executive  and  judicial  officers  of  a  State,  or  the 
members  of  the  legislature  thereof,  is  denied  to  any  of  the 
male  inhabitants  of  such  State,  being  twenty-one  years  of 
age,  and  citizens  of  the  United  States,  or  in  any  way 

1787,  sec.  12.  They  do  not  occupy  constitutional  offices,  but  are  merely 
the  creation  of  Congress.  Biddle  v.  Richards  (1823)  Clarke  &  Hall, 
Contested  Elections,  407.  Congress  may  at  any  time  by  a  majority 
vote  withdraw  the  right  to  limited  membership  from  a  territorial  dele- 
gate. Cannon  v.  Campbell  (1882)  2  Ellsworth's  Digest  of  Contested 
Elections,  604, 

1  Ex  parte  Yarborough  (1884)  1 10  U.  S.  651. 

3  Art.  I,  sec.  I,  par.  3. 

3  See  Sees.  159  and  219. 


158       THE  AMERICAN  CONSTITUTION       §  63 

abridged,  except  for  participation  in  rebellion,  or  other 
crime,  the  basis  of  representation  therein  shall  be  reduced 
in  the  proportion  which  the  number  of  such  male  citizens 
shall  bear  to  the  whole  number  of  male  citizens  twenty- 
one  years  of  age  in  such  State." 

The  provision  contained  in  this  section  of  the  amendment 
for  the  reduction  of  representation  in  Congress  has  never 
been  put  into  effect. 

The  Constitution  called  for  an  enumeration  or  census 
within  three  years  after  the  first  meeting  of  Congress,  and 
within  every  subsequent  term  of  ten  years.  It  also  declared 
that,  "The  number  of  Representatives  shall  not  exceed  one 
for  every  thirty  thousand,  but  each  State  shall  have  at  least 
one  Representative."1  Under  the  census  of  1910  there  was 
one  Representative  for  every  212,407  inhabitants,  and  the 
number  of  inhabitants  for  each  Representative  will  prob- 
ably be  increased  under  the  1920  census.2 

The  Constitution  declares  that, 

"The times,  places,  and  manner  of  holding  elections  for 
Senators  and  Representatives  shall  be  prescribed  in  each 
State  by  the  legislature  thereof ;  but  the  Congress  may  at 
any  time  by  law  make  or  alter  such  regulations,  except 
as  to  the  places  of  choosing  Senators."3 

1  Art.  I,  sec.  2,  par.  3.    This  paragraph  further  provided  that  "until 
such  enumeration  shall  be  made,  the  State  of  New  Hampshire  shall  be 
entitled  to  choose  three,  Massachusetts  eight,  Rhode  Island  and  Provi- 
dence Plantation  one,  Connecticut  five,  New  York  six,  New  Jersey  four, 
Pennsylvania  eight,  Delaware  one,  Maryland  six,  Virginia  ten,  North 
Carolina  five,  South  Carolina  five,  and  Georgia  three." 

2  Although  a  new  census  shows  a  State's  right  to  a  change  in  the  num- 
ber of  Representatives,  until  Congress  makes  a  new  apportionment  a 
State  must  get  on  with  the  old  number.     In  re  Lowe  (1863)  I  Bartlett's 
Contested  Elections,  418;  State  v.  Boyd  (1893)  36  Neb.  181.     State  dis- 
tricts for  the  election  of  Representatives  are  fixed  by  state  legislation, 
but  are  to  be  composed  of  contiguous  compact  territory  containing 
as  nearly  as  possible  an  equal  number  of  inhabitants.     Act  of  Aug.  8, 
1891 ,  37  Stat.  13.     Redistricting  may  by  state  constitution  be  subjected 
to  referendum.    Davis  v.  Ohio  (1916)  241  U.  S.  565. 

*  Art.  I,  sec.  4,  par.  i. 


§64         ORGANIZATION  OF  CONGRESS         159 

Congressional  legislation  now  decrees  that  Representatives 
shall  be  elected  in  even  years  on  the  Tuesday  next  after  the 
first  Monday  in  November,  and  that  vacancies  may  be 
filled  by  elections  as  prescribed  by  the  laws  of  each  State.1 
All  votes  for  Representatives  must  be  by  written  or  printed 
ballots  or  by  voting  machine.2 

§64.     Qualifications  of  Representatives. 

"No  person  shall  be  a  Representative  who  shall  not 
have  attained  the  age  of  twenty-five  years,  and  been 
seven  years  a  citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  inhabitant  of  that  State  in  which 
he  shall  be  chosen."3 

The  age  limit  incorporated  into  this  section  was  agreed  to 
in  the  Convention  without  much  discussion,4  and,  although 
there  was  difference  of  opinion  as  to  whether  the  term  of  a 
Representative  should  be  one,  two,  or  three  years,  two  years 
was  quite  early  agreed  upon. s  It  was  first  suggested  that  a 
candidate  for  Representative  should  have  been  a  citizen 
for  three  years,  but  this  was  later  increased  to  seven,  al- 
though the  question  was  frequently  debated,  and  several 
different  periods  were  advocated.6  Different  property  and 
financial  qualifications  were  strongly  urged,  but  the  Con- 
vention did  not  seem  able  to  agree  upon  any  of  them,  and 
they  were  finally  left  out.7  Custom  has  established  the 
practice  of  electing  only  Representatives  who  reside  in  the 
districts  from  which  they  are  returned,  and  the  statutes  of 
several  States  add  this  qualification  to  those  provided  for 
in  the  Constitution.  Other  qualifications  have  also  been 

1  "When  vacancies  happen  in  the  representation  from  any  State,  the 
executive  authority  thereof  shall  issue  writs  of  election  to  fill  such 
vacancies."  Const,  of  U.  S.,  art.  I,  sec.  2,  par.  4. 

3  U.  S.  Rev.  Stat.,  sees.  25  to  27. 

3  Const,  of  U.  S.,  art,  I,  sec.  2,  par.  2. 

«  Farrand,  The  Records  of  the  Federal  Convention,  vol.  i,  pp.  221,  370, 

375- 

*Ibid.,  vol.  i,  pp.  214,  220. 

6  Ibid.,  vol.  ii,  pp.  213,  216,  265,  268  to  272,  281. 

^  Ibid.,  vol.  ii,  121  to  126,  225. 


160       THE  AMERICAN  CONSTITUTION       §  65 

enacted  by  State  legislation.1  Such  limitations  have  been 
held,  however,  not  to  be  effective.2  This  view  is  undoubt- 
edly correct.  It  is  clearly  the  intention  of  the  Constitution 
that  all  persons  not  disqualified  by  the  terms  of  that  instru- 
ment should  be  eligible  to  the  federal  office  of  Represen- 
tative. 

§65.  Choice  of  Speaker  and  Other  Officers  by  the  House  of 
Representatives.  "The  House  of  Representatives  shall 
choose  their  Speaker  and  other  officers.  .  .  ."3  The  title 
"Speaker"  used  for  the  presiding  officer  of  the  House  of 
Representatives  is,  of  course,  taken  from  the  title  given  to 
the  officer  who  presides  over  the  English  House  of  Commons. 
The  House  has  also  provided  for  a  clerk,  sergeant-at-arms, 
doorkeeper,  postmaster,  and  chaplain.  Each  party  chooses 
in  caucus  the  nominees  for  these  offices,  and  the  nominees 
of  the  dominant  party  are  elected.  The  Constitution  does 
not  define  the  powers  and  duties  of  the  Speaker,  but  under 
the  rules  of  the  House  his  powers  over  legislation  have 
been  very  great,  and  though  they  have  been  somewhat 
curtailed  they  are  still  very  important  in  the  matter  of 
the  appointment  of  committees  and  their  chairmen,  and 
in  the  power  he  has  to  recognize  or  to  refuse  to  recog- 
nize those  who  desire  to  speak  on  any  measure.  He  is  an 
avowed  partisan,  and  in  this  he  differs  from  the  Speaker 
of  the  House  of  Commons,  who  though  put  in  office 
by  a  party  maintains  an  impartial  attitude,  and  is  cus- 
tomarily reflected  at  the  beginning  of  each  successive 
Parliament,  even  though  the  opposition  may  have  come 
into  power.4 

1  "The  Legal  Qualifications  of  Representatives,"  j  Amer.  L.  Rev., 
410  and  411. 

3  See  the  article  just  referred  to,  and  Barney  v.  McCreery  (1808) 
Clarke  &  Hall's  Contested  Elections,  167;  Turney  v.  Marshall  (1856)  I 
Bartlett's  Contested  Elections,  167;  Ohio  v.  Russell  (1900)  10  Ohio  Dec. 

255. 

3  Const,  of  U.  S.,  art.  I,  sec.  2,  par.  5.    This  section  also  gives  the 
House  the  sole  power  of  impeachment.    This  subject  is  dealt  with  else- 
where, see  sec.  40. 

4  Dicey's  Law  of  the  Constitution,  Introduction,  p.  liv. 


§  66         ORGANIZATION  OF  CONGRESS          161 

§66.  Election  and  Terms  of  Senators.1  The  problem  of 
the  constitution  of  the  Senate  was  one  of  the  most  difficult 
which  came  before  the  Constitutional  Convention,  and 
there  was  long  debate,  fraught  with  very  strong  feeling, 
before  the  following  statement,  which  seems  to  us  so  simple, 
was  agreed  to:  "The  Senate  of  the  United  States  shall  be 
composed  of  two  Senators  from  each  State,  chosen  by  the 
legislatures  thereof,  for  six  years;  each  Senator  shall  have 
one  vote."2 

Four  proposals  for  the  choice  of  Senators  were  advanced : 

(1)  That  they  should  be  chosen  by  the  State  Legislatures3; 

(2)  that  they  should  be  chosen  by  the  people,  the  country 
being  divided  into  districts  for  this  purpose4 ;  (3)  that  they 
should  be  elected  by  the  House  of  Representatives  from 
persons  nominated  by  the  State  Legislatures5;  (4)  that  they 

1  It  is  interesting  to  compare  the  provisions  in  this  and  the  next 
section  with  those  on  the  same  subjects  in  the  laws  of  the  British  Domin- 
ions. In  Canada  the  Senate  represents  equally  the  three  divisions  of 
Ontario,  Quebec,  and  the  Maritime  Provinces.  The  Senators  are  ap- 
pointed by  the  Governor-General  for  life.  They  must  be  thirty  years  of 
age,  citizens  having  certain  property  qualifications,  and  residents  of  the 
province  which  they  represent.  They  vote  per  capita.  (British  North 
American  Act  1867,  sees.  21  to  36.)  In  Australia  there  are  six  Senators 
from  each  State.  They  were  formerly  elected  by  the  State  Legislatures 
but  are  now  elected  at  large  in  each  State.  The  term  of  a  Senator  is  six 
years,  half  of  the  Senators  from  each  State  retiring  every  three  years. 
The  qualifications  of  Senators  and  of  their  electors  are  the  same  as  for 
Representatives.  (See  note  supra,  p.  156.)  They  vote  per  capita  and 
not  by  States.  (Australian  Constitution  Act,  sees.  7,  13, 14, 16, 23.)  The 
South  African  Act  provided  that  eight  Senators  should  be  appointed  by 
the  Governor-General,  and  that  eight  should  be  elected  by  the  Legisla- 
ture of  each  State,  each  to  hold  office  for  ten  years;  that  at  the  expiration 
of  that  time  the  South  African  Parliament  might  provide  the  method  of 
election,  but  that  if  no  such  provision  was  made  the  original  method  be 
continued.  Senators  must  be  thirty  years  of  age,  electors  in  their  States, 
resident  in  the  Union  for  five  years,  and  a  British  subject  of  European 
descent.  They  vote  per  capita.  (South  African  Act  1909,  sees.  24  to 
26,  31.) 

a  Art.  I,  sec.  3,  par   I. 

3  Farrand,  The  Records  of  the  Federal  Convention,  vol.  i,  pp.  51, 58, 149. 

4  Ibid.,  vol.  i,  pp.  52,  58,  149. 

s  Ibid.,  vol.  i,  pp.  20,  46,  55, 61. 


162        THE  AMERICAN  CONSTITUTION       §  66 

should  be  appointed  by  the  President  from  persons  similarly 
nominated.1  The  last  proposition  had  no  seconder,  and 
the  third  early  received  an  adverse  vote.  The  relative 
advantages  of  popular  election  and  election  by  state 
legislatures  were  fully  debated,2  but  the  feeling  was  very 
strong  that  a  sufficient  concession  was  being  made  to  popular 
representation  in  the  lower  house,  that  the  sovereignty  of 
the  States  should  be  recognized  in  the  method  adopted  for 
the  election  of  Senators,  and  that  in  one  house  the  senti- 
ment of  the  States  as  distinguished  from  that  of  the  people 
as  a  whole  should  be  reflected.  The  result  was  a  determin- 
ation that  Senators  should  be  chosen  by  the  legislatures  of 
the  several  States.3  During  the  century  and  a  quarter 
which  followed  the  adoption  of  the  Constitution  there  was  a 
complete  change  of  sentiment  on  this  subject  and  in  favor 
of  a  popular  choice  of  Senators.  This  sentiment  first 
found  expression  in  state  laws  or  regulations  of  party 
organizations  providing  that  the  people  should  by  popular 
vote  indicate  the  choice  of  persons  which  they  wished  the 
legislatures  to  make  for  the  senatorial  office.  This  change 
in  sentiment  culminated,  however,  in  the  Seventeenth 
Amendment,  adopted  in  1913,  which  is  as  follows: 

"The  Senate  of  the  United  States  shall  be  composed 
of  two  Senators  from  each  State,  elected  by  the  people 
thereof  for  six  years ;  and  each  Senator  shall  have  one  vote. 
The  electors  in  each  State  shall  have  the  qualifications 
requisite  for  electors  of  the  most  numerous  branch  of  the 
State  Legislature." 

The  great  battle  in  the  Convention  with  regard  to  the 
Senate  was  waged  over  the  question  whether  the  represen- 
tation in  that  House  should  be  proportional,  or  whether 
the  States  should  be  equally  represented.  This  question 
occupied  the  convention  almost  continuously  from  June 

1  Farrand,  The  Records  of  the  Federal  Constitution,  vol.  i,  p.  151. 
a  Ibid.,  vol.  i,  pp.  150  to  160,  404  to  408,  410  to  415. 
3  Ibid.,  vol.  i,  pp.  149,  156,  157,  160,  480,  for  the  votes  cast  on  this 
proposition. 


§  66         ORGANIZATION  OF  CONGRESS         163 

29th  to  July  1 6th,  and  stirred  the  delegates  very  deeply.1 
Proportional  representation  was  desired  by  the  large 
States,  and  in  the  votes  taken  during  the  early  part  of  the 
debate  obtained  a  bare  majority.2  From  the  outset,  how- 
ever, the  small  States  declared  that  they  would  never  agree 
to  any  plan  except  upon  the  basis  of  equal  representation  in 
the  Senate. 3  The  deadlock  was  finally  broken  by  conceding 
equal  representation  in  the  Senate,  but  requiring  that  bills 
for  raising  and  appropriating  money  and  for  fixing  salaries 
should  originate  in  the  House  of  Representatives,  and 
should  not  be  amended  in  the  Senate.4  It  was  later  agreed 
that  two  Senators  should  be  chosen  from  each  State,5  and 
that  they  should  vote  per  capita  and  not  by  States. 6  The 
term  of  Senators  which  was  first  proposed  was  seven  years, 
but  as  the  idea  of  rotation  gained  favor,  it  was  proposed  that 
the  term  should  be  four,  six,  or  nine  years.  It  was  even 
urged  by  some  that  Senators  should  hold  office  during  good 
behavior.  Finally  six  years  was  agreed  upon. 7 

Rotation  in  office  of  Senators  was  obtained  by  the  follow- 
ing provision : 

''Immediately  after  they  shall  be  assembled  in  conse- 
quence of  the  first  election,  they  shall  be  divided  as 
equally  as  may  be  into  three  classes.  The  seats  of  the 
Senators  of  the  first  class  shall  be  vacated  at  the  expir- 
ation of  the  second  year,  of  the  second  class,  at  the 
expiration  of  the  fourth  year,  and  of  the  third  class,  at  the 
expiration  of  the  sixth  year,  so  that  one  third  may  be 
chosen  every  second  year;  and  if  vacancies  happen  by 

1  Farrand,  The  Records  of  the  Federal  Convention,  vol.  i,  p.  460  to  vol. 
ii,  p.  20. 

2  Ibid.,  vol.  i,  pp.  151,  152,  155,  193,  201. 
J  Ibid.,  vol.  i,  p.  201. 

4  Ibid.,  vol.  ii,  pp.  13  to  16.  This  latter  provision  was  later  modified 
to  provide  that,  "All  bills  for  raising  revenue  shall  originate  in  the 
House  of  Representatives;  but  the  Senate  may  propose  or  concur  with 
amendments  as  on  other  bills."  Art.  I,  sec.  7,  par.  I. 

s  Ibid.,  vol.  ii,  pp.  85,  94. 

6  Ibid.,  vol.  ii,  pp.  95,  243. 

?  Ibid.,  vol.  i,  pp.  218,  291,  396,  408,  409,  418,  420  to  434. 


164       THE  AMERICAN  CONSTITUTION      §  67 

resignation  or  otherwise  during  the  recess  of  the  legis- 
lature of  any  State,  the  executive  thereof  may  make  tem- 
porary appointments  until  the  next  meeting  of  the 
legislature,  which  shall  then  fill  such  vacancies."1 

As  we  have  seen  above  in  connection  with  Represen- 
tatives, it  is  provided  in  the  Constitution  that,  "The  times, 
places,  and  manner  of  holding  elections  for  Senators  and 
Representatives  shall  be  prescribed  in  each  State  by  the 
legislature  thereof;  but  the  Congress  may  at  any  time  by 
law  make  or  alter  such  regulations,  except  as  to  the  places 
of  choosing  Senators."2  Congress  did  in  1866  enact  regu- 
lations for  the  election  of  Senators, 3  but  these  were  super- 
seded by  the  Seventeenth  Amendment.  The  only  con- 
gressional statute  now  in  force  on  the  subject  is  that  at  the 
regular  election  held  in  a  State  next  preceding  the  expiration 
of  the  term  of  one  of  its  Senators,  his  successor  shall  be 
chosen.4  In  1910  a  Corrupt  Practices  Act  was  passed  by 
Congress  which  forbade  candidates  for  the  House  or  the 
Senate  to  contribute  or  cause  to  be  contributed  more  than  a 
specified  amount  in  procuring  their  nomination  or  election. 
In  Newberry  v.  United  States5  the  Supreme  Court  in  the 
trial  of  Senator  Newberry  held  that  the  Constitution  gives 
Congress  no  control  of  nominations  but  only  of  elections  of 
Representatives  and  Senators,  and  that  the  Statute  in 
question  was  unconstitutional. 

§67.  Qualifications  of  Senators.  "No  person  shall  be  a 
Senator  who  shall  not  have  attained  to  the  age  of  thirty 
years,  and  been  nine  years  a  citizen  of  the  United  States,  and 

1  Art.  I,  sec.  3,  par.  2.  The  last  part  of  this  paragraph  is  changed  by 
section  2  of  the  Seventeenth  Amendment,  as  follows:  "When  vacancies 
happen  in  the  representation  of  any  State  in  the  Senate,  the  executive 
authority  of  such  State  shall  issue  writs  of  election  to  fill  such  vacancies: 
Provided,  That  the  legislature  of  any  State  may  empower  the  executive 
thereof  to  make  temporary  appointments  until  the  people  fill  the  vacan- 
cies by  election  as  the  legislature  may  direct." 

a  Art.  I,  sec.  4,  par.  i. 

a  Act  of  July  26,  1866,  14  Stat.  243. 

^  Act  of  June  4,  1914,  chap.  103,  38  Stat.  384. 

s  (1921)  41  Sup.  Ct.  R.  469. 


§  68         ORGANIZATION  OF  CONGRESS         165 

who  shall  not,  when  elected,  be  an  inhabitant  of  that  State 
for  which  he  shall  be  chosen."1  The  age  limit  of  thirty 
years  was  adopted  without  debate.  Different  property  and 
financial  qualifications  were  suggested,  but  the  Convention 
did  not  seem  able  to  agree  upon  any  of  them,  and  they  were 
finally  dropped.2  It  was  first  proposed  that  a  Senator 
should  be  a  citizen  of  the  United  States.  Then  the  period 
of  four  years  was  suggested.  Next  it  was  proposed  to 
increase  this  period  to  fourteen  years,  and  then  to  ten,  both  of 
which  proposals  were  defeated.  After  considerable  debate 
nine  years  were  agreed  upon,  it  being  felt  that  the  period 
should  be  longer  than  that  fixed  for  Representatives. 3  It 
is  as  clear  that  States  have  no  more  right  to  add  to  the 
constitutional  qualifications  of  Senators  than  they  have  to 
add  to  those  for  Representatives. 4 

§68.  Officers  of  the  Senate.  The  Senate,  unlike  the 
House  of  Representatives,  does  not  elect  its  presiding  officer, 
the  Constitution  providing  that,  "The  Vice-President  of  the 
United  States  shall  be  President  of  the  Senate,  but  shall 
have  no  vote,  unless  they  be  equally  divided."5  The 
Vice-President  has  no  vote  on  ordinary  occasions,  does 
not  appoint  committees,  and  has  no  part  in  the  general 
business  of  the  Senate.  His  position  is  a  peculiar  one;  he 

1  Art.  I,  sec.  3,  par.  3. 

2  Farrand,  Records  of  the  Federal  Convention,  vol.  ii,  pp.  121  to  126. 

3  Ibid.,  vol.  ii,  pp.  141, 155,  228,  235  to  239,  266,  272.     This  qualifica- 
tion of  citizenship  prevented  Albert  Gallatin  from  occupying  the  seat  in 
the  Senate  to  which  he  was  elected  in  1 793.  Taft's  Senate  Election  Cases, 
57.    It  was  held  in  the  case  of  H.  L.  Revels  (1870)  Taft's  Senate  Election 
Cases,  312,  that  notwithstanding  the  decision  in  the  Dred  Scott  case 
(1857)  19  Howard  393,  a  person  of  partly  African  blood  could  qualify 
in  the  Senate  without  waiting  for  the  lapse  of  nine  years  after  the  adop- 
tion of  the  Fourteenth  Amendment. 

«  See  supra,  sec.  64,  and  see  the  case  of  Trumball  (1856)  Taft's  Senate 
Election  Cases,  148. 

s  Art.  I,  sec.  3,  par.  4.  See  The  Federalist,  No.  68,  and  Story  on  the  Con- 
stitution (5th  ed.) ,  sees.  735  to  740.  The  first  time  when  a  Vice-President 
cast  a  deciding  vote  was  in  the  first  Congress  on  the  question  of  the 
President's  right  of  removal  of  federal  officers.  See  sec.  29.  The  power 
has  proved  important  on  a  number  of  occasions. 


166       THE  AMERICAN  CONSTITUTION       §  69 

has  very  little  part  in  the  government  unless  he  succeeds  to 
the  presidential  office,  when  he  at  once  gains  great  power 
and  importance.  It  has  been  urged  that  he  should  sit  as  a 
member  of  the  cabinet,  and  President  Harding  upon  his 
election  decided  to  act  upon  this  suggestion.  It  is  further 
provided  that,  "The  Senate  shall  choose  their  officers,  and 
also  a  President  pro  tempore  in  the  absence  of  the  Vice-Presi- 
dent, or  when  he  shall  exercise  the  office  of  President  of  the 
United  States."1 

§69.  Legislative  Sessions  of  Congress.  The  Constitution 
requires  that,  "The  Congress  shall  assemble  at  least  once  in 
every  year,  and  such  meeting  shall  be  on  the  first  Monday 
in  December,  unless  they  shall  by  law  appoint  another 
day. ' ' 2  Congress  has  not  passed  such  a  law,  and  a  Congress 
which  is  elected  in  November  does  not  meet  in  regular 
session  until  the  December  of  the  year  following.  The 
President,  however,  has  power  "on  extraordinary 
occasions"  to  "convene  both  houses  or  either  of  them,"3 
and  under  this  authority  Presidents  often  do  summon  new 
Congresses  in  special  session  before  the  time  fixed  by  the 
Constitution. 

The  Constitution  declares  that,  "a  majority  of  each 
[house]  shall  constitute  a  quorum  to  do  business;  but  a 
smaller  number  may  adjourn  from  day  to  day,  and  may 
be  authorized  to  compel  the  attendance  of  absent  members, 
in  such  manner,  and  under  such  penalties,  as  each  house 
may  provide."4  The  Constitution  leaves  to  each  house  to 
provide  how  the  presence  of  a  quorum  shall  be  determined, 
and  the  Supreme  Court  has  held  that  it  is  proper  to  ac- 
complish this  end  by  having  the  clerk  of  the  house  note  and 
record  in  the  Journal  the  names  of  those  who  are  present 
but  who  do  not  vote.5  In  providing  for  compelling  the 

1  Art.  I,  sec.  3,  par.  5.      The  next  two  paragraphs  give  to  the  Senate 
the  power  to  try  impeachments.    The  subject  of  impeachments  is  dealt 
with  in  sec.  40. 

2  Art.  I,  sec.  4,  par.  2. 

3  Art.  II,  sec.  3. 

<  Art.  I,  sec.  5,  par.  I. 

&  United  States  v.  Ballin  (1892)  144  U.  S.  I. 


§  69         ORGANIZATION  OF  CONGRESS         167 

attendance  of  members  the  delegates  to  the  Constitutional 
Convention  undoubtedly  had  in  mind  the  difficulty  which 
the  Continental  Congress  experienced  in  procuring  the 
attendance  of  sufficient  members  to  transact  business. 

"Each  house  may  determine  the  rules  of  its  proceed- 
ings .  .  ."I  This  clause  gives  to  each  house  the  power 
to  make  any  rules  for  the  conduct  of  its  business  which  are 
not  in  conflict  with  constitutional  provisions,  and  which 
are  not  wholly  unreasonable  for  the  attainment  of  the 
results  sought. 2  Under  this  authority  the  appointment  of 
committees,  the  discussion  of  pending  legislation,  and  all 
the  other  proceedings  of  both  houses  are  regulated. 

In  order  to  keep  the  public  informed  of  what  is  going  on  in 
Congress  it  is  required  that, 3  "each  house  shall  keep  a  Jour- 
nal of  its  proceedings,  and  from  time  to  time  publish  the 
same,  excepting  such  parts  as  may  in  their  judgment  require 
secrecy  ..."  The  original  suggestion  of  the  Committee  of 
Detail  was  that  the  House  should  keep  and  publish  a  Journal 
of  its  proceedings  but  that  the  Senate  should  only  keep  such 
a  Journal  when  acting  in  a  legislative  capacity,  and  in  debate 
it  was  suggested  that  both  houses  should  keep  a  Journal  of 
their  proceedings,  but  that  the  Senate  should  not  be  re- 
quired to  publish  its  proceedings  when  not  acting  in  its 
legislative  capacity.  Finally,  however,  the  provisions  were 
made  uniform,  leaving  it  to  the  judgment  of  each  house  to 
determine  what  parts  of  its  Journal  should  be  published.4 

The  same  paragraph  goes  on  to  declare  that, ' '  the  yeas  and 
nays  of  the  members  of  either  house  on  any  question  shall, 
at  the  desire  of  one  fifth  of  those  present,  be  entered  on  the 
Journal."  The  object  of  this  provision  is,  of  course,  to  put 
the  votes  of  the  members  on  record.  At  times  it  is  a  distinct 

1  Art.  I,  sec.  5,  par.  2. 

2  United  States  v.  Ballin  (1892)  144  U.  S.  I. 

3  Art.  I,  sec.  5,  par.  3. 

*  Farrand,  The  Records  of  the  Federal  Convention,  vol.  ii,  pp.  156,  166, 
247,  255,  259.  The  Articles  of  Confederation,  art.  IX,  called  for  the 
publication  of  the  Journal  of  Congress  monthly,  "except  such  parts 
thereof  relating  to  treaties,  alliances,  or  military  operations,  as  in  their 
judgment  require  secrecy." 


168       THE  AMERICAN  CONSTITUTION       §  70 

advantage  for  the  public  to  know  just  how  the  various 
members  have  voted,  but  this  provision  has  undoubtedly 
been  frequently  abused,  being  taken  advantage  of  for  the 
sole  purpose  of  causing  delay. x 

§70.  Determination  of  Elections,  Returns  and  Quali- 
fications of  Members.  The  Constitution  makes  each  house 
"the  judge  of  the  elections,  returns,  and  qualifications  of  its 
own  members."2  Obviously  there  must  be  vested  in  some 
tribunal  the  authority  to  examine  into  the  validity  of 
elections.  The  only  question  is  whether  that  authority 
should  be  confided  to  the  legislative  body  itself  or  to  the 
courts.  In  confiding  to  the  houses  of  Congress  the  right 
to  judge  of  the  elections  and  qualifications  of  their  own 
members  the  framers  of  the  Constitution  were  following 
the  practice  of  the  English  House  of  Commons, 3  but  in  1868 
that  practice  was  abolished  in  England,  and  the  jurisdiction 
in  election  contests  was  transferred  to  the  courts.4  The 
argument  in  favor  of  the  constitutional  provision  is  that 
each  house  is  naturally  most  zealous  for  its  own  purity,  and 
so  will  be  most  likely  to  carefully  enforce  the  constitutional 
and  statutory  provisions  with  regard  to  the  qualifications 
and  elections  of  its  members.5  A  slight  consideration  of 
the  subject,  however,  would  seem  to  justify  the  conclusion 
that  all  election  contests  would  much  better  be  confided  to 
the  jurisdiction  of  the  judiciary.  In  the  first  place  the 
consideration  of  election  contests  by  the  houses  of  Congress 
consumes  time  which  should  be  devoted  to  legislative  busi- 
ness, and  their  constitution  is  not  such  as  to  make  them  as 

1  By  the  Articles  of  Confederation,  art.  IX,  any  delegate  could  call 
for  a  record  of  the  yeas  and  nays.    A  similar  provision  was  suggested  in 
the  Constitutional  Convention  but  voted  down.    It  was  also  suggested 
that  the  provision  be  struck  out  entirely,  and  also  that  one  fifth  of  the 
House  might  call  for  the  yeas  and  nays,  and  that  in  the  Senate  any 
member  might  record  his  dissent.    Farrand,  The  Records  of  the  Federal 
Convention,  vol.  ii,  pp.  246,  255. 

2  Art.  I,  sec.  5,  par.  I. 

» I  Black  Com.,  163,  178. 

*  See  The  Laws  of  England,  vol.  xii,  p.  408  et  seq. 

s  Story  on  the  Constitution  (5th  ed.),  sec.  833. 


§  7i         ORGANIZATION  OF  CONGRESS         169 

well  qualified  as  a  court  to  examine  and  determine  questions 
of  fact.  Furthermore  the  determination  of  an  election 
contest  by  the  legislative  body  is  much  too  apt  to  be  affected 
by  the  party  affiliation  of  the  person  in  question. x  A  trans- 
fer of  these  functions,  however,  to  the  judiciary  could  only 
be  accomplished  by  an  amendment  to  the  Constitution. 2 

§71.  Punishment  of  Members  and  of  Those  Guilty  of 
Contempts.  "Each  house  may  .  .  .  punish  its  members 
for  disorderly  behavior,  and  with  the  concurrence  of  two 
thirds,  expel  a  member."3  That  each  house  of  Congress 
should  have  the  power  to  maintain  order  among  its  own 
members  is  clear,  and  the  houses  are,  therefore,  very  properly 
vested  with  power  to  punish  their  members  for  disorderly 
behavior.  The  Supreme  Court  has  said:  "We  see  no 
reason  to  doubt  that  this  punishment  may  in  a  proper  case 
be  imprisonment,  and  that  it  may  be  for  refusal  to  obey 
some  rule  on  that  subject  made  by  the  House  for  the  preser- 
vation of  order."4  The  proposal  with  regard  to  the  expul- 
sion of  members  as  it  came  from  the  Committee  of  Detail 
would  have  allowed  such  expulsion  by  a  majority  vote,  but 
the  clause  was  changed  to  its  present  form  to  prevent  the 
expulsion  of  an  opponent  by  a  faction  of  either  house.5 
There  are  no  limitations  put  upon  this  power  by  the  Con- 
stitution, and  proceedings  for  expulsion  have  been  based 
upon  various  allegations  of  misconduct.  William  Blount 
was  expelled  from  the  Senate  in  1797  for  stirring  up  the 
Indians  and  interfering  with  the  work  of  the  government 

1  Miller  on  the  Constitution  of  the  United  States,  193. 

2  In  Canada  election  contests  were  originally  heard  by  a  committee 
of  the  House  of  Commons,  but  are  now  tried  in  the  courts.    Egerton, 
Federations  and  Unions  in  the  British  Empire,  133,  note.    Questions  as  to 
the  qualifications  of  Senators  in  Canada  are  heard  by  the  Senate. 
British  North  American  Act  1867,  sec.  33.      In  Australia  election  con- 
tests were  originally  determined  by  each  house,  but  now  are  tried  in  the 
High  Court.    Australia  Constitution  Act,  sec.  47;  Egerton,    Federations 
and  Unions  in  the  British  Empire ,  199,  note. 

3  Const,  of  U.  S.,  art.  I,  sec.  5,  par.  2. 

<  Kilbourn  v.  Thompson  (1880)  103  U.  S.  168,  189. 
s  Farrand,  The  Records  of  the  Federal  Convention,  vol.  ii,  pp.  156,  166, 
246,  254- 


170       THE  AMERICAN  CONSTITUTION      §  71 

agents  among  them.1  Thirteen  Senators  were  expelled 
during  the  Civil  War  for  adhering  to,  or  supporting  the 
Confederacy.2  Proceedings  were  brought  in  1808  to  expel 
John  Smith  from  the  Senate  for  being  a  party  to  Aaron 
Burr's  schemes  for  which  the  latter  was  tried  for  treason. 
Burr  having  been  acquitted,  however,  two  thirds  of  the 
Senate  could  not  be  brought  to  concur  in  Smith's  expulsion. 3 
Proceedings  were  instituted  in  1862  to  expel  James  F. 
Simmons  from  the  Senate  for  corrupt  practices  in  connection 
with  government  contracts,  but  he  resigned  before  the 
Senate  could  act,  and  the  proceedings  were  dropped.4 

In  the  Case  of  Anderson  v.  Dunn5  action  was  brought 
against  the  Sergeant-at-Arms  of  the  House  of  Represen- 
tatives for  assault  and  battery  and  false  imprisonment,  to 
which  he  pleaded  that  he  had  arrested  the  plaintiff  under  an 
order  of  the  House  declaring  that  the  plaintiff  had  been 
guilty  of  "a  breach  of  the  privileges  of  the  House,  and  of  a 
high  contempt  of  the  dignity  and  authority  of  the  same' ' ; 
that  he  had  brought  the  plaintiff  before  the  bar  of  the 
House;  that  the  plaintiff  had  been  found  guilty,  and  was 
ordered  reprimanded  by  the  Speaker  and  discharged,  which 
was  done.  Upon  demurrer  this  plea  was  held  good,  the 
Supreme  Court  declaring  that  the  only  question  was 
"whether  the  House  of  Representatives  can  take  cogni- 
zance of  contempts  committed  against  themselves  under 
any  circumstances? "  The  nature  of  the  plaintiff's  acts  do 
not  appear,  and  all  that  was  decided  was  that  it  is  not  true 
that  there  are  no  circumstances  under  which  a  person  not  a 
member  may  be  punished  for  contempt  by  the  houses  of 
Congress.  In  the  case  of  Kilbourn  v.  Thompson6  the  power 
of  the  houses  of  Congress  to  punish  non-members  for 
contempt  was  much  more  fully  discussed.  The  court 
expressed  the  opinion  that  in  election  disputes  or  in  im- 

1  Taft's  Senate  Election  Cases,  74.     With  regard  to  the  impeachment 
of  Blount  see  sec.  40. 

2  Ibid.,  197,  198,  213,  215,  217. 

3  Ibid.,  79.  4  Ibid.,  237. 

s  (1821)  6  Wheaton  204.  6  (1880)  103  U.  S.  168. 


§  7i         ORGANIZATION  OF  CONGRESS         171 

peachment  trials,  in  which  it  would  be  proper  for  the  house 
in  question  to  call  witnesses,  witnesses  would  probably  be 
subject  to  the  same  liability  for  contempts  as  they  would  be 
before  a  judicial  tribunal,  but  the  court  declared  that, 

1 '  Whether  the  power  of  punishment  in  either  house  by 
fine  or  imprisonment  goes  beyond  this  or  not,  we  are 
sure  that  no  person  can  be  punished  for  contumacy  as  a 
witness  before  either  house,  unless  his  testimony  is  re- 
quired in  a  matter  into  which  the  house  has  jurisdiction 
to  inquire  and  we  feel  equally  sure  that  neither  of  these 
bodies  possesses  the  general  power  of  making  inquiry  into 
the  private  affairs  of  the  citizen."1 

Kilbourn's  alleged  contempt  consisted  of  his  refusal  to 
answer  certain  questions  before  a  committee  of  the  House 
which  was  investigating  the  affairs  of  a  business  concern 
of  which  the  United  States  was  a  creditor.  Since  the  only 
method  of  enforcing  the  government's  claim  would  be 
through  the  courts,  and  there  seemed  no  legislative  object 
to  be  served  by  the  committee's  investigation,  the  Supreme 
Court  held  that  the  House  had  no  authority  to  punish 
Kilbourn  for  contempt. 2 

1  Kilbourn  v.  Thompson  (1880)  103  U.  S.  190. 

3  In  support  of  the  right  of  the  House  to  punish  in  this  case,  was  urged 
the  authority  exercised  in  this  regard  by  the  English  Parliament. 
The  court  pointed  out  that  both  the  House  of  Lords  and  the  House  of 
Commons  are  but  branches  of  the  ancient  High  Court  of  Parliament, 
which  exercised  both  legislative  and  judicial  functions,  and  have  as  such 
exercised  the  right  of  punishing  for  contempts,  while  the  houses  of 
Congress  have  only  such  powers  as  are  expressly  or  by  reasonable  impli- 
cation granted  by  the  Constitution,  and  are  expressly  forbidden  to  de- 
prive any  person  of  liberty  without  due  process  of  law.  Furthermore 
the  court  pointed  out  that  even  the  power  of  the  houses  of  Parliament 
to  punish  for  contempt  extends  only  to  matters  of  which  it  has  jurisdic- 
tion, and  that  the  question  of  its  jurisdiction  is  a  question  for  the  courts. 
Stockdale  v.  Hansard  (1839)  9  Ad.  &  Ell.  I.  It  is  interesting  to  note,  as 
pointed  out  by  the  Supreme  Court  (pp.  186  to  189)  that  the  Privy 
Council  has  held  that  the  dominion  legislatures  have  not  all  the  powers 
of  Parliament,  but  only  the  powers  granted  to  them,  and  that  the  power 
to  punish  for  contempt  is  not  necessarily  inherent  in  a  legislative  body 


172       THE  AMERICAN  CONSTITUTION      §  71 

By  federal  statute  it  is  made  a  misdemeanor  for  a  person 
called  as  a  witness  by  either  house  to  wilfully  make  default 
or  to  refuse  to  answer  questions  put  to  him.  A  witness 
having  refused  to  testify  in  the  course  of  a  senatorial  investi- 
gation into  the  alleged  misconduct  of  certain  members 
of  that  body,  which  investigation  might  have  led  to  expul- 
sion, was  indicted  and  held  for  trial.  Upon  petition  for  a 
writ  of  habeas  corpus  it  was  refused. x  The  Supreme  Court 
held  that  the  Senate  had  the  right  to  conduct  such  an 
investigation  under  its  power  to  expel  members,  and  could, 
therefore,  have  punished  the  recalcitrant  witness  for  con- 
tempt, but  that  Congress  might  also  make  such  a  refusal  to 
testify  a  misdemeanor. 

In  the  case  of  Marshall  v.  Gordon2  the  question  of  the  im- 
plied power  of  the  houses  of  Congress  to  punish  for  contempt 
was  fully  considered  by  Chief  Justice  White,  and  it  was  held 
that ' '  from  the  power  to  legislate  given  by  the  Constitution 
to  Congress  there  was  to  be  implied  the  right  of  Congress 
to  preserve  itself,  that  is,  to  deal  by  way  of  contempt  with 
direct  obstructions  to  its  legislative  duties. ' ' 3  The  instances 
of  punishment  by  the  houses  of  Congress  for  contempt, 
which  are  approved  by  the  court,  are  instances  of  "either 
physical  obstruction  of  the  legislative  body  in  the  discharge 
of  its  duties,  or  physical  assault  upon  its  members  for 
action  taken  or  words  spoken  in  the  body,  or  obstruction 
of  its  officers  in  the  performance  of  their  official  duties, 
or  the  prevention  of  members  from  attending  so  that 
their  duties  might  be  performed,  or  finally  with  contu- 
macy in  refusing  to  obey  orders  to  produce  documents 
or  give  testimony  which  there  was  a  right  to  compel."4 
It  would  seem,  then,  from  this  opinion,  although  it  is  nowhere 
stated  in  so  many  words,  that  refusal  to  testify  before  a 

and  does  not  belong  to  the  dominion  legislatures.  Kielly  v.  Carson 
(1841)  4  Moore's  P.  C.  63;  Fenton  v.  Hampton  (1858)  n  Moore's  P.  C. 
347;  Doyle  v.  Falconer  (1866)  L.  R.  i  P.  C.  328. 

1  In  re  Chapman  (1897)  166  U.  S.  661. 

*  (1917)  243  U.  S.  521. 

37-  *Ibid.t  543- 


§§72,73  ORGANIZATION  OF  CONGRESS         173 

congressional  committee,  which  is  investigating  for  the 
purpose  of  framing  legislation,  may  be  punished  as  a  con- 
tempt. It  is  declared, x  however,  that  the  power  even  when 
applied  to  subjects  which  justify  its  exercise  "is  limited  to 
imprisonment  and  such  imprisonment  may  not  be  extended 
beyond  the  session  of  the  body  in  which  the  contempt 
occurred."2 

§72.  Adjournment.  " Neither  house,  during  the  session 
of  Congress,  shall,  without  the  consent  of  the  other,  adjourn 
for  more  than  three  days,  nor  to  any  other  place  than  that  in 
which  the  two  houses  shall  be  sitting. ' ' 3  The  reason  for  this 
provision  is  obvious.  If  either  house  could,  without  the 
consent  of  the  other,  adjourn  for  an  indefinite  period  the 
legislative  business  of  the  government  could  by  the  act  of 
one  house  be  brought  to  a  standstill.  The  length  of  a 
congressional  session  lies  entirely  in  the  discretion  of  Con- 
gress, except  that  in  case  of  disagreement  between  the  two 
houses  with  respect  to  the  time  of  adjournment,  the  Presi- 
dent may  adjourn  them  to  such  time  as  he  shall  think 
proper. 4  The  President  may  also,  as  we  have  seen,  convene 
either  house  or  both  houses  in  special  session. s 

§73.  Compensation  of  Members  of  Congress.  Two  ques- 
tions with  regard  to  compensation  of  members  of  Congress 
were  debated  at  some  length  in  the  Constitutional  Conven- 
tion, namely,  whether  such  compensation  should  come  from 
the  States,  as  was  true  under  the  Articles  of  Confederation,6 
or  from  the  federal  treasury,  and  whether  the  amount  of 
compensation  should  be  fixed  by  the  Constitution,  or  left  to 
be  determined  from  time  to  time  by  law. 7  There  was  strong 
support  in  the  Convention  for  the  proposal  to  have  members 

1  Marshall  v.  Gordon  (1917)  243  U.  S.  542. 

3  With  regard  to  the  attitude  of  the  state  courts  on  the  subject  of  the 
legislative  power  to  punish  for  contempts  see  6  R.  C.  L.,  521 ;  7  Ann.  Cas. 
877,  note. 

3  Const,  of  U.  S.,  art.  I,  sec.  5,  par.  4. 

*  Ibid.,  art.  II,  sec.  3.    This  power  has  never  been  exercised. 

tlbid.  «Art.  V. 

'Farrand,  The  Records  of  the  Federal  Convention,  vol.  i,  pp.  371  to 
375,  vol.  ii,  pp.  290  to  293. 


174       THE  AMERICAN  CONSTITUTION      §  74 

of  Congress  paid  by  their  respective  States,1  but  the  argu- 
ments that  this  would  make  them  too  dependent  on  the 
States,  and  that  it  would  lead  to  unfortunate  differences  in 
their  salaries,  finally  prevailed.  Also  the  practical  difficul- 
ties of  fixing  by  constitutional  provision  the  compensation  of 
members  of  Congress  in  such  a  way  as  not  to  become  wholly 
inadequate  in  the  future,  led  to  a  decision  to  leave  the 
matter  of  compensation  to  Congress  itself.  The  con- 
stitutional provision  finally  adopted  is  as  follows:  "The 
Senators  and  Representatives  shall  receive  a  compensation 
for  their  services,  to  be  ascertained  by  law  and  paid  out  of 
the  treasury  of  the  United  States."2 

§74.  Immunities  of  Members  of  Congress.  The  early 
English  law  recognized  in  the  members  of  Parliament  not 
only  a  privilege  of  speech,  and  a  personal  immunity  from 
arrest,  but  also  an  equal  immunity  of  their  domestics  from 
arrest,  and  an  immunity  of  their  lands  and  goods  from  legal 
process.  These  latter  immunities  of  domestics,  lands  and 
goods  were  taken  away  by  statute  in  1770,  and  personal 
immunity  never  extended  to  cover  arrest  for  crime.  Per- 
sonal immunity  from  arrest  extended  not  only  during  the 
sessions  of  Parliament,  but  for  a  reasonable  time  before  and 
after  each  session. 3  The  privilege  of  speech  was  guarantied 
in  the  Bill  of  Rights  where  it  was  declared,  "that  the  free- 
dom of  speech,  and  debates,  and  proceedings  in  parliament, 
ought  not  to  be  impeached  or  questioned  in  any  court  or 

1  See  particularly  the  records  of  votes  on  different  dates,  Farrand, 
The  Records  of  the  Federal  Convention,  vol.  i,  pp.  383,  385,  391,  428,  433, 
and  the  report  of  the  "  Committee  of  Detail, "  ibid.,  vol.  ii,  pp.  166,  180. 
It  was  even  suggested  that  Senators  should  receive  no  compensation  as 
it  was  desired  that  they  should  be  drawn  from  persons  having  substantial 
fortunes.    Ibid.,  vol.  i,  p.  219. 

2  Art.  I,  sec.  6,  par.  i.      For  the  statutory  provisions  for  compensa- 
tion of  Senators  and  Representatives  at  different  periods,  see  Watson 
on  the  Constitution,  305. 

3 1  Black.  Comm.,  164  to  167.  Blackstone  says  that  the  immunity 
from  arrest  extended  for  forty  days  before  and  after  each  session,  but 
see  the  criticism  of  this  statement  in  Hoppin  v.  Jenckes  (1867)  8  R.  I. 
453- 


§  74        ORGANIZATION  OF  CONGRESS         175 

place  out  of  parliament."1  The  privileges  of  speech  and  of 
person  were  guarantied  to  delegates  to  the  Continental 
Congress,2  and  it  was  natural  that  they  should  be  incor- 
porated into  the  Constitution.  They  are  provided  for  in 
these  words : 

"They  [Senators  and  Representatives]  shall,  in  all 
cases  except  treason,  felony,  and  breach  of  the  peace,  be 
privileged  from  arrest,  during  their  attendance  at  the 
session  of  their  respective  houses,  and  in  going  to  and 
returning  from  the  same ;  and  for  any  speech  or  debate 
in  either  house  they  shall  not  be  questioned  in  any  other 
place."3 

The  provision  as  to  privilege  from  arrest  applies  as  soon 
as  a  person  is  elected  to  Congress  and  before  he  takes  his 
seat.4  It  is  effective  during  a  reasonable  time  before  and 
after  a  session  of  Congress,  during  which  a  member  is  going 
to  or  returning  from  the  seat  of  government. s  The  privi- 
lege is  not  now  of  great  importance  since  "treason,  felony, 
and  breach  of  the  peace"  have  been  declared  to  cover  all 
criminal  offenses,6  and  there  is  comparatively  little  provi- 

1  This  declaration  in  the  Bill  of  Rights  was  the  culmination  of  a  long 
struggle  between  Crown  and  Parliament,  in  which  the  latter  consist- 
ently claimed  the  privilege  in  question,  which,  however,  was  often 
violated  by  the  Crown,  particularly  during  the  period  of  the  Tudors. 
This  history  is  most  interestingly  sketched  in  "  Absolute  Immunity  in 
Defamation:  Legislative  and  Executive  Proceedings,"  by  Van  Vechten 
Veeder,  10  Col.  L.  Rev.  131 , 132  to  134.  The  legislative  bodies  in  Canada 
and  Australia  have  the  same  privileges  as  attach  to  the  British  Parlia- 
ment. Ibid.,  134  n.  Similar  privileges  are  guarantied  in  practically 
all  other  civilized  countries.  Ibid.,  131  n. 

3  "  Freedom  of  speech  and  debate  in  Congress  shall  not  be  impeached 
or  questioned  in  any  court,  or  place  out  of  Congress,  and  the  members  of 
Congress  shall  be  protected  in  their  persons  from  arrests  and  imprison- 
ments, during  the  time  of  their  going  to  and  from,  and  attendance  on 
Congress,  except  for  treason,  felony,  or  breach  of  the  peace."  Art.  V. 

3  Art.  I,  sec.  6,  par.  i. 

*  Story  on  the  Constitution  (5th  ed.),  sec.  864. 

s  Ibid. ;  Dunton  v.  Halstead  (1840)  2  Pa.  L.  J.  R.  450;  Miner  v.  Mark- 
ham  (1886)  28  Fed.  387. 

6  Williamson  v.  United  States  (1908)  207  U.  S.  425. 


176       THE  AMERICAN  CONSTITUTION      §  75 

sion  in  the  law  at  present  for  arrest  in  civil  actions.  Al- 
though there  has  been  some  variety  of  opinion  as  to  whether 
the  constitutional  privilege  extends  to  the  service  of  a 
summons  in  a  civil  suit,  it  would  seem  clear  that  it  was  not 
intended  to  do  so. z 

The  privilege  of  freedom  of  speech  in  legislative  assem- 
blies is  clearly  one  of  the  prime  essentials  to  a  free  govern- 
ment, and  it  has  been  declared  that  the  constitutional 
guaranty  of  this  privilege  should  be  liberally  construed.2 
It,  therefore,  covers  reports,  resolutions,  and  votes,  as 
well  as  ordinary  speeches  and  debates,  and  whether  oc- 
curring in  the  full  assembly  or  in  committee.3  It  does 
not,  however,  protect  acts  or  words,  otherwise  illegal, 
though  done  or  spoken  by  a  member  of  the  legislature  within 
the  legislative  halls,  if  not  in  relation  to  business  before  it,4 
and  it  would  seem  not  to  give  immunity  for  the  publication 
by  a  member  outside  of  libelous  matter  which  was  privileged 
within  the  legislative  chamber. s 

§75.  Disability  of  Members  of  Congress  to  Hold  other 
Offices.  The  propriety  of  members  of  Congress  holding  other 
offices  was  much  debated  in  the  Constitutional  Convention, 
and  resulted  in  several  close  divisions.  After  some  dis- 
cussion in  the  Committee  of  the  Whole  that  committee 
reported  to  the  Convention  a  resolution  that  members  of 
both  houses  of  Congress  be 

"ineligible  to  any  office  established  by  a  particular  State 
or  under  the  authority  of  the  United  States  (except  those 
peculiarly  belonging  to  the  functions  of  the  first  branch) 

1  Kimberly  v.  Butler  (1869)  Fed.  Cas.  No.  7,777;  Merrick  v.  Giddings 

(1879)  i  M.  &  M.  (Dist.  of  Col.)  56. 

a  Coffin  v.  Coffin  (1808)  4  Mass.  i.      Kilbourn  v.  Thompson  (1880) 
103  U.  S.  168. 
s  Ibid. 
«  Coffin  v.  Coffin  (1808)  4  Mass.  I,  approved  in  Kilbourn  v.  Thompson 

(1880)  103  U.  S.  168,  203. 

s  Story  on  the  Constitution  (5th  ed.),  sec.  866;  Veeder,  "Absolute 
Immunity  in  Defamation:  Legislative  and  Executive  Proceedings," 
jo  Col.  L.  Rev.,  131,  136. 


§  75         ORGANIZATION  OF  CONGRESS         177 

during  the  term  of  service,  and  under  the  national  govern- 
ment for  the  space  of  one  year  after  its  expiration."1 

This  was  undoubtedly  suggested  by  the  similar  provision 
in  the  plan  proposed  by  Randolph.2  A  sharp  difference 
of  opinion  at  once  arose  as  to  the  wisdom  of  any  plan  for  dis- 
qualifying members  of  Congress  for  holding  office.  On  the 
one  hand  such  men  as  Gorham,  Wilson,  Hamilton,  and 
Pinckney  felt  that  any  such  provision  would  discourage 
good  men  from  entering  the  legislature,  and  would  con- 
stitute an  unjustifiable  reflection  upon  the  integrity  of 
members  of  Congress,  while  on  the  other  hand  men  such  as 
Mason,  Butler,  Gerry,  and  Sherman  thought  such  a  safe- 
guard necessary  against  corruption  and  intrigue.3  A  mo- 
tion to  strike  out  this  whole  provision  was  lost  by  an  even 
division,  though  upon  a  later  vote  to  retain  it  its  supporters 
gained  a  substantial  majority. 4  After  some  consideration  the 
prohibition  to  hold  offices  under  state  governments  was  struck 
out  by  a  vote  of  eight  States  to  three. s  Later  the  Commit- 
tee of  Detail,  to  which  the  subject  had  been  referred  reported 
a  provision  making  members  of  Congress  ineligible  to  any 
office  under  the  United  States  during  their  respective  terms, 
and,  in  case  of  Senators,  for  one  year  after  the  expiration  of 
their  terms.6  The  subject  was  further  debated,  and  one 
suggestion  in  particular  was  made,  namely,  that  the  proposed 
wording  would  prevent  members  of  Congress  being  appointed 
to  military  and  naval  positions  in  times  of  emergency.7 
Consideration  of  the  whole  matter  was  postponed,  however, 
and  finally  referred  to  the  Committee  of  Eleven,  which  pro- 
posed that  members  of  Congress  should  be  ineligible  to  hold 
civil  offices  under  the  United  States  during  their  terms  and 
that  no  person  holding  any  office  under  the  United  States 

1  Farrand,  The  Records  of  the  Federal  Convention,  vol.  i,  p.  228. 

9  Ibid.,  p.  20. 

3  Ibid.,  vol.  i,  pp.  375,  379,  vol.  ii,  pp.  283  to  289,  489  to  492. 

*  Ibid.,  vol.  i,  pp.  377,  390. 

s  Ibid.,  vol.  i,  pp.  383,  391,  419,  429,  434. 

6  Ibid.,  vol.  ii,  p.  180. 

i  Ibid.,  pp.  282,  289. 

12 


1 78        THE  AMERICAN  CONSTITUTION       §  75 

should  be  a  member  of  Congress  while  continuing  to  hold 
office  under  the  United  States, z  thus  giving  effect  to  the 
suggestion  with  regard  to  military  and  naval  offices,  and 
eliminating  the  special  restriction  upon  Senators  contained 
in  the  previous  report.2  Upon  consideration  of  this  pro- 
posed provision  by  the  Convention  it  was  amended  so  as  to 
restrict  ineligibility  of  members  of  Congress  to  appointment 
to  civil  offices  under  the  United  States  which  are  created, 
or  whose  emoluments  are  increased  during  the  respective 
terms  of  the  members.3  As  put  into  shape  by  the 
Committee  of  Style  and  adopted  by  the  Convention  the 
provision  on  this  subject  reads : 

"No  Senator  or  Representative  shall,  during  the  time 
for  which  he  was  elected  be  appointed  to  any  civil  office 
under  the  authority  of  the  United  States,  which  shall 
have  been  created,  or  the  emoluments  whereof  shall 
have  been  increased  during  such  time;  and  no  person 
holding  any  office  under  the  United  States  shall  be  a 
member  of  either  house  during  his  continuance  in  office."4 

When  President  Taft  was  elected  he  wanted  Senator 
Knox  to  act  as  his  Secretary  of  State,  but  the  salaries  of 
members  of  the  Cabinet  had  been  increased  while  Senator 
Knox  was  a  member  of  the  upper  house.  To  meet  this 
difficulty  the  salary  of  the  Secretary  was  by  law  reduced  to 
the  figure  at  which  it  stood  when  Mr.  Knox  entered  the 
Senate.  It  is  believed  that  this  was  within  the  letter,  as 
well  as  being  clearly  within  the  spirit  of  the  constitutional 
regulation.  It  is,  of  course,  clear  from  the  language  of  the 
Constitution  that  a  Senator  or  Representative  is,  after  the 
expiration  of  his  term,  eligible  to  any  office,  even  though  it 
was  created  or  its  emoluments  were  increased  while  he  was 

1  Farrand,  The  Records  of  the  Federal  Convention,  vol.  ii,  p.  483. 

*  Ibid.,  vol.  i,  pp.  383,  391,  419,  429,  434  for  consideration  by  the 
Convention  of  the  advisability  of  extending  ineligibility  beyond  the  end 
of  a  member's  term. 

s  Ibid.,  vol.  ii,  p.  487.  This  change  was  first  suggested  by  Madison. 
Ibid.,  vol.  i,  p.  386. 

4  Art.  I,  sec.  6,  par.  2< 


§  75         ORGANIZATION  OF  CONGRESS         179 

in  Congress.  Though  there  is  no  prohibition  of  the  appoint- 
ment of  a  member  of  Congress  to  a  military  or  naval  office, 
his  acceptance  of  such  a  commission  vacates  his  seat  in  the 
house  of  which  he  was  a  member,  since  no  person  holding 
any  office  under  the  United  States  may  be  a  member  of 
Congress.1  The  House  of  Representatives  has  declared 
in  the  case  of  a  contested  election  that  a  person  does  not 
become  a  member  of  Congress  upon  election,  but  only  upon 
being  sworn  in  and  taking  his  seat,  and  that,  therefore,  one 
who  has  been  elected  to  Congress  need  not  resign  another 
office  held  under  the  United  States  until  he  takes  his  seat. 2 
It  seems  that  a  position  to  constitute  an  "office"  in  the 
constitutional  sense  must  have  a  tenure  of  some  duration, 
with  emoluments  and  substantial  duties,  and  that  positions 
which  are  merely  transient,  occasional,  or  incidental  are  not 
within  the  term  and  so  are  not  constitutionally  incompatible 
with  service  in  Congress. 3 

1  The  Case  of  Archibald  Yell  (1847)  Bartlett's  Contested  Elections  in 
Congress,  92. 

2  Hammond  v.  Herrick  (1817)  Clarke  &  Hall's  Contested  Elections  in 
Congress,  287.     The  House  gave  extended  consideration  to  this  case 
and  the  votes  taken  were  very  close. 

3  House  Report  No.  2205,  55th  Cong.  3d  sess.;  Willoughby  on  the 
Constitution,  sec.  231. 


CHAPTER  VII 

TAXATION  AND  OTHER  FISCAL  POWERS  OF  CONGRESS 

§76.  Power  to  Tax.  One  of  the  principal  weaknesses  of 
the  national  government  under  the  Articles  of  Confeder- 
ation was  its  lack  of  power  to  levy  taxes.  National  expen- 
ses were  to  be  defrayed  out  of  a  common  treasury,  which 
was  to  be  supplied  by  the  several  States  in  proportion  to  the 
occupied  land  in  each  State,  upon  requisition  by  Congress, 
but  the  States  expressly  reserved  the  right  to  levy  the  taxes 
for  this  purpose, x  and  were  in  fact  very  delinquent  in  making 
their  contributions. 2  To  remedy  this  situation  the  impor- 
tant provision  was  placed  in  the  Constitution  to  the  effect 
that  "Congress  shall  have  power  to  lay  and  collect  taxes, 
duties,  imposts,  and  excises,  to  pay  the  debts  and  provide 
for  the  common  defense  and  general  welfare  of  the  United 
States. ' ' 3  This  gives  the  national  government  the  power  to 
act  directly  upon  individuals  in  the  raising  of  money, 
instead  of  being  compelled  to  act  through  the  States,  and 
the  terms  used  are  sufficiently  inclusive  to  cover  all  forms  of 
taxation.  Except  for  specific  constitutional  limitations  put 
upon  the  taxing  power,  Congress  may  lay  taxes  upon  any 
individual,  any  property,  and  any  occupation  or  privilege, 
and  there  is  apparently  no  limit  to  the  amount  which  the 
government  may  take  in  taxes.  Marshall  declared,  using 
the  words  which  had  just  been  spoken  by  Webster  as  coun- 
sel: "The  power  to  tax  involves  the  power  to  destroy."4 

1  Articles  of  Confederation,  art.  VIII. 
8  The  Federalist,  Nos.  15,  30. 
3  Art.  I,  sec.  8,  par.  I. 

*  M'Culloch  v.  Maryland  (1819)  4  Wheaton  316,  431  (Marshall),  327 
(Webster). 

1 80 


§  77  TAXATION  181 

1 '  The  only  security  against  the  abuse  of  this  power  is  found 
in  the  structure  of  the  government  itself."1 

§77.  Constitutional  Purposes  of  Taxation.2  It  might  at 
first  be  considered  reasonable  that  the  power  of  the  national 
government  to  tax,  and  to  use  money  raised  by  taxation 
should  be  exercised  only  in  connection  with  those  other 
powers  which  are  delegated  to  it  by  the  Constitution.  Presi- 
dent Monroe,  in  a  memorandum  submitted  by  him  in  con- 
nection with  one  of  his  vetos, 3  tells  us  that  this  was  origin- 
ally his  opinion,  but  that  upon  further  consideration  he  had 
come  to  the  conclusion  that  "Congress  have  an  unlimited 
power  to  raise  money,  and  that  in  its  appropriation  they 
have  a  discretionary  power,  restricted  only  by  the  duty  to 
appropriate  it  to  purposes  of  common  defense  and  of  general 
not  local,  national,  not  state,  benefit."  There  seems  no 
ground  to  doubt  that  this  conclusion  was  correct  in  light  of 
the  declaration  in  the  Constitution  that  Congress  can  raise 
money  by  taxation  "to  pay  the  debts  and  provide  for  the 
common  defense  and  general  welfare  of  the  United  States," 
and  no  doubt  has  been  expressed  on  this  point  by  the 
Supreme  Court. 

On  the  other  hand  it  is  clear  that  Congress  has  no  con- 
stitutional right  to  levy  taxes  except  for  public  purposes. 
It  would  seem  to  be  the  obvious  meaning  of  the  constitu- 
tional provision  quoted  above  that  the  power  of  taxation  is 
only  given  for  the  purpose  of  paying  the  debts  and  provid- 
ing for  the  common  defense  and  general  welfare  of  the 
United  States.  But  aside  from  the  reasonableness  of  this 
interpretation  there  is  the  more  fundamental  considera- 
tion that  the  taxing  power  is  vested  in  the  state  for  the 
benefit  of  the  public,  and,  therefore,  can  only  be  used  for  a 

1  M'Culloch  v.  Maryland  (1819)  4  Wheaton  316,  428. 

a  Debts  contracted  under  the  Confederation  were  made  binding  on 
the  United  States  by  the  Constitution  (art.  VI,  par.  i),  and  the  Con- 
stitution declares  that  debts  incurred  by  the  United  States  for  the  sup- 
pression of  rebellion  at  the  time  of  the  Civil  War,  including  pensions  and 
bounties,  shall  not  be  questioned.  (Fourteenth  Amendment,  sec.  4.) 

3  President  Monroe's  views  are  quoted  at  length  in  Willoughby  on  the 
Constitution,  589  to  592. 


1 82        THE  AMERICAN  CONSTITUTION       §  77 

public  purpose.  As  is  said  by  Judge  Cooley:  "  Taxes  .are 
defined  to  be  burdens  or  charges  imposed  by  the  legislative 
power  upon  persons  or  property,  to  raise  money  for  public 
purposes. "  "  Taxation  having  for  its  only  legitimate  object 
the  raising  of  money  for  public  purposes  and  the  proper 
needs  of  government,  the  exaction  of  moneys  from  the 
citizens  for  other  purposes  is  not  a  proper  exercise  of  this 
power,  and  must  therefore  be  unauthorized."1  To  take 
property  by  federal  taxation  for  a  private  purpose  would 
clearly  be  a  taking  "without  due  process  of  law,"  contrary 
to  the  Fifth  Amendment.2  This  principle  has  been  often 
applied  with  regard  to  the  States  under  an  identical  provision 
in  the  Fourteenth  Amendment. 3  Federal  taxation  is,  how- 
ever, not  generally  vulnerable  at  this  point  since  taxes  are 
generally  not  levied  by  the  United  States  for  particular 
purposes,  but  to  be  applied  to  the  expenses  of  the  government 
as  a  whole.  Some  appropriations  by  the  national  govern- 
ment might,  perhaps,  be  open  to  attack  as  putting  money 
raised ,  by  taxation  to  .a  private  purpose,  but  there  has 
seemed  to  be  no  inclination  to  bring  such  attacks  before  the 
courts.  The  courts  are  undoubtedly  prepared  to  allow  to 
Congress  the  widest  discretion  in  this  regard.  In  a  case 
where  money  had  been  appropriated  by  Congress  to  the 
payment  of  claims  not  legal  in  their  character,  but  based 
merely  upon. moral  or  honorary  considerations,  the  Supreme 
Court  held  that  "debts,"  for  which  Congress  may  lay  taxes, 
include  such  claims,  and  declared  that  the  decision  of  Con- 
gress "recognizing  such  a  claim  and  appropriating  money 
for. its  payment  can  rarely,  if  ever,  be  the  subject  of  review 
by  the  judicial  branch  of  the  government."4 

1  Constitutional  Limitations  (yth  ed.),  678,  696. 

3  "  No  person  .  .  .  shall  be  deprived  of  life,  liberty,  or  property  with- 
out due  process  of  law." 

3  See  sec.  249. 

«  United  States  v.  Realty  Co.  (1896)  163  U.  S.  427,  444.  In  this  case 
the  court  says  (p.  440):  "It  is  unnecessary  to  hold  here  that  Congress 
has  power  to  appropriate  the  public  money  in  the  treasury  to  any  pur- 
pose whatever  which  it  may  choose  to  say  is  in  payment  of  a  debt  or  for 
purposes  of  the  general  welfare.  A  decision  of  that  question  may  be 


§  78  TAXATION  183 

§78.  Taxation  for  Regulation.  Clearly  the  theory  of 
taxation  is  that  it  is  for  the  purpose  of  raising  revenue  to 
meet  public  expenses,  but  it  is  also  used  frequently  for 
purposes  of  regulation.  Even  though  a  tax  is  obviously 
levied  for  the  main  or  sole  purpose  of  regulating  a  business,  if 
Congress  might,  under  one  of  its  other  powers,  have  regu- 
lated the  business  directly,  there  is  no  constitutional 
objection  to  its  accomplishing  the  desired  regulation 
through  the  instrumentality  of  taxation.  So  in  Veazie 
Bank  v.  Fenno*  the  Supreme  Court  upheld  a  prohibitive 
tax  on  the  notes  of  state  banks,  on  the  ground  that  Congress 
having, 

4 'in  the  exercise  of  undisputed  constitutional  powers, 
undertaken  to  provide  a  currency  for  the  whole  country, 
it  cannot  be  questioned  that  Congress  may,  constitution- 
ally, secure  the  benefit  of  it  to  the  people  by  appropriate 
legislation.  .  .  .  Viewed  in  this  light,  ...  we  cannot 
doubt  the  constitutionality  of  the  tax  under  con- 
sideration." 

In  a  later  case  a  tax  of  fifty  cents  levied  upon  owners  of 
vessels  for  every  passenger  brought  from  a  foreign  port  was 
attacked  on  the  ground  that  its  purpose  was  not  to  raise 
money  for  the  common  defense  or  for  the  general  welfare,  but 
the  Supreme  Court  replied  that 

"the  true  answer  to  all  these  questions  is,  that  the  power 
exercised  in  this  instance  is  not  the  taxing  power.  The 
burden  imposed  on  the  ship-owner  by  this  statute  is  the 
mere  incident  of  the  regulation  of  commerce,  of  that 
branch  of  foreign  commerce  which  is  involved  in  immi- 
gration. ...  If  this  is  an  expedient  regulation  of 

postponed  until  it  arises."  In  Field  v.  Clark  (1892)  143  U.  S.  649,  695, 
the  question  was  raised  as  to  whether  bounties  constituted  an  uncon- 
stitutional use  of  national  funds,  but  was  not  decided.  With  regard  to 
the  right  of  Congress  to  attach  conditions  to  appropriations  of  money 
for  the  payment  of  private  claims,  see  Capital  Trust  Co.  v.  Calhoun 
(1919)  250  U.  S.  208,  Calhoun  v.  Massie  (1920)  253  U.  S.  170. 
1  (1869)  8  Wallace  533,  549. 


184       THE  AMERICAN  CONSTITUTION      §  78 

commerce  by  Congress,  and  the  end  to  be  attained  is  one 
falling  within  that  power,  the  Act  is  not  void  because, 
within  a  loose  and  more  extended  sense  than  was  used  in 
the  Constitution,  it  is  called  a  tax."1 

It  is  clear  that  protective  features  in  tariffs  might  be 
justified  under  this  doctrine  even  if  it  were  shown  that  they 
were  enacted  purely  for  protection  and  not  at  all  for 
revenue. 

But  this  doctrine  will  not  apply  in  cases  where  the  regu- 
lation in  question  is  of  a  transaction  whose  regulation 
could  not  be  justified  under  any  constitutional  power  of  the 
national  government  other  than  that  of  taxation — as,  for 
instance,  the  manufacture  of  oleomargarine,  or  the  dealing 
in  futures.  In  McCray  v.  United  States2  the  court  had  be- 
fore it  the  question  of  the  constitutionality  of  a  federal 
statute  imposing  a  tax  of  ten  cents  a  pound  upon  oleomarga- 
rine colored  to  look  like  butter.  There  is  no  power  under 
which  Congress  can  directly  prohibit  the  manufacture  of 
such  an  article,  and  it  was  contended  that  the  tax  imposed 
would  prevent  such  manufacture,  that  this  was  its  purpose, 
and  that  the  statute  was  therefore  unconstitutional.  The 
court,  however,  held  that  the  manufacture  of  oleomargarine 
is  a  legitimate  subject  of  an  excise  tax,  and  that  it  had  no 
authority  to  inquire  into  the  motive  with  which  Congress 
imposes  a  tax,  and,  further,  that  no  lack  of  due  process  can 
result  from  the  selection  made  of  the  subjects  of  such 
taxation.  In  a  later  case  in  a  lower  federal  court  it  was  said 
of  a  federal  tax  on  cotton  futures  that 

"everyone  who  has  studied  the  investigations,  reports, 
and  discussions  preceding  and  producing  the  passage  of 
the  act  knows  that  nothing  was  further  from  the  intent 
or  desire  of  the  lawmakers  than  the  production  of 


*  Head  Money  Cases  (1884)  112  U.  S.  580,  595,  596. 
For  a  somewhat  similar  position  with  regard  to  state  legislation  see  a 
note  to  sec.  175,  with  regard  to  charges  based  upon  tonnage. 
« (1904),  195  U.  S.  27. 


§  79  TAXATION  185 

Yet  a  revenue  was  produced  and  apparently  counsel  on 
both  sides  agreed  that  the  law  was  a  revenue  law  within  the 
constitutional  meaning.  The  district  judge  compared  the 
case  with  Me  Cray  v.  United  States,  and  seemed  to  think  that 
the  latter  case  would  be  a  controlling  authority  for  holding 
the  statute  under  consideration  to  be  within  the  con- 
stitutional power  of  Congress  to  enact.1  The  statute  was 
held  unconstitutional,  however,  because  it  was  a  revenue 
measure  and  originated  in  the  Senate  contrary  to  the 
constitutional  prohibition. 

The  Supreme  Court  has  now  before  it  the  question  whether 
a  federal  tax  of  10  per  cent,  of  the  net  profits  received  for  the 
sale  of  products  of  establishments  employing  child  labor  is 
constitutional,2  the  statute  being  obviously  for  the  purpose^ 
of  preventing  the  employment  of  children  in  manufactur- 
ing establishments.  It  would  seem  difficult  to  distinguish 
the  case  from  Me  Cray  v.  United  States. 

§79.  Direct  Taxes.  It  is  provided  in  the  Constitution 
that,  "No  capitation  or  other  direct  tax  shall  be  laid,  unless 
in  proportion  to  the  census  or  enumeration  hereinbefore 
directed  to  be  taken."3  A  capitation  or  poll  tax  is  one 
levied  directly  upon  persons.  The  determination  of  the 
question  what  taxes  are  direct  has  run  an  interesting  course 
through  the  decisions  of  the  Supreme  Court.  In  an  early 
case  it  was  declared  that  a  tax  on  carriages  was  not  a  direct 


1  Hubbard  v.  Lowe  (1915)  226  Fed.  135,  137. 

3  Act  of  Feb.  28,  1919,  40  Stat.  1138.  This  statute  is  particularly 
interesting  in  view  of  the  fact  that  Congress  attempted  to  mitigate  the 
child  labor  evil  which  exists  in  some  of  our  States  under  its  power  over 
interstate  commerce,  but  its  attempt  was  held  unconstitutional.  Ham- 
mer v.  Dagenhart  (1918)  247  U.  S.  251.  See  sec.  91. 

3  Art.  I,  sec.  9,  par.  4.  It  was  also  originally  provided  (art.  I,  sec.  2, 
par.  3)  that,  "Representatives  and  direct  taxes  shall  be  apportioned 
among  the  several  States  .  .  .  according  to  their  respective  numbers, 
which  shall  be  determined  by  adding  to  the  whole  number  of  free  per- 
sons, including  those  bound  to  service  for  a  term  of  years,  and  excluding 
Indians  not  taxed,  three  fifths  of  all  other  persons."  The  latter  part  of 
the  provision,  of  course,  lost  its  significance  when  the  Thirteenth 
Amendment  abolished  slavery. 


1 86       THE  AMERICAN  CONSTITUTION      §  79 

tax. *  It  was  said  that,  since  direct  taxes  are  to  be  appor- 
tioned according  to  population  as  shown  by  the  census,  the 
Constitution  could  only  have  been  meant  to  class  as  direct 
taxes  such  as  are  apportionable,  and  that  the  subject  taxed 
must,  therefore,  be  the  determining  factor  in  each  case. 
Since  apportionment  could  not  reasonably  be  applied  in  a 
tax  on  carriages  the  court  held  that  a  tax  on  carriages  was 
not  a  direct  tax.  Further  the  suggestion  was  made  that 
probably  the  only  direct  taxes  are  taxes  on  land  and  capi- 
tation taxes.  In  Scholey  v.  Rew2  the  Supreme  Court  held 
that  a  tax  on  succession  to  real  estate  was  not  a  direct  tax 
but  was  in  the  nature  of  an  excise  upon  the  privilege  of 
taking  by  inheritance.  In  the  case  of  Springer  v.  United 
States3  an  income  tax  was  upheld  by  a  unanimous  court  on 
the  ground  that  it  was  not  a  direct  tax,  the  basis  of  the 
court's  decision  being  "that  direct  taxes,  within  the  meaning 
of  the  Constitution,  are  only  capitation  taxes,  as  expressed 
in  that  instrument,  and  taxes  on  real  estate."4  However, 
in  Pollock  v.  Farmers'  Loan  and  Trust  Company5  the  ques- 
tion of  the  constitutionality  of  a  federal  income  tax  not 
levied  in  proportion  to  the  census  came  again  before  the 
Supreme  Court,  and  was  elaborately  argued,  Joseph  H. 
Choate,  James  C.  Carter,  and  W.  D.  Guthrie  being  among 
the  counsel.  The  court  reviewed  the  whole  subject  of 
taxation  with  the  greatest  care,  and  came  to  the  conclusion 
that  a  tax  upon  personal  property  is  a  direct  tax  as  well  as  a 
tax  upon  realty,  thus  in  effect  overruling  Hylton  v.  United 
States,  supra,  and  that  a  tax  upon  the  income  from  realty  and 
a  tax  upon  the  income  from  personalty  are  in  fact  taxes  upon 

1  Hylton  v.  United  States  (1796)  3  Dallas  171. 

2  (1874)  23  Wallace  331. 

3  (1880)  102  U.  S.  586. 

4  Ibid.,  602.    The  court  in  reaching  this  conclusion  relied  upon  Hylton 
v.  United  States,  supra,  and  upon  Pacific  Ins.  Co.  v.  Soule  (1868)    7 
Wallace  433,  and  also  Veazie  Bank  v.  Fenno  (1869)   8  Wallace  533,  in 
which  by  use  of  the  same  definition  taxes,  respectively,  upon  the  receipts 
of  insurance  companies,  and  upon  bank,  notes  of  state  banks,  were  held 
not  to  be  direct. 

*  (1895)  157  U.  S.  429  and  (1895)  158  U.  S.  602. 


§  79  TAXATION  187 

the  property  from  which  the  income  is  derived,  and  so  a 
direct  tax.  Two  justices  dissented  from  the  decision  with 
regard  to  income  from  real  estate,  and  four  justices  dis- 
sented from  the  decision  with  regard  to  income  from  per- 
sonal property.  Here  we  have  a  striking  reversal  by  the 
Supreme  Court  of  its  position  with  regard  to  the  meaning  of 
" direct  taxes,"  and  one  of  very  great  importance. 

Within  a  short  time  the  court  had  occasion  to  point  out 
the  distinction  between  a  direct  tax  and  an  excise  in  the 
case  of  Nicol  v.  Ames. I  That  case  involved  the  validity  of  a 
tax  upon  each  sale  or  contract  to  sell  at  any  exchange  or 
board  of  trade  measured  by  the  value  of  the  sale.  The 
court  held  that  this  was  not  a  tax  upon  the  thing  sold,  nor 
upon  the  income  from  such  sale,  but  an  excise  upon  the 
privilege  of  selling  at  the  places  mentioned.  In  this  deci- 
sion the  court  was  unanimous. 2  Somewhat  later  the  court 
had  before  it  a  case  involving  the  constitutionality  of  a 
federal  corporation  tax  measured  by  the  income  of  each 
corporation  involved,  and  the  court  was  unanimously  of  the 
opinion  that  this  was  not  a  direct  tax  but  an  excise  upon  the 
privilege  of  doing  business  in  a  corporate  capacity.3  Dis- 
tinguishing its  earlier  decision  that  an  income  tax  is  a  direct 
tax,  the  court  said4: 

"The  Pollock  case  construed  the  tax  there  levied  as 
direct,  because  it  was  imposed  upon  property  simply 
because  of  its  ownership.  In  the  present  case  the  tax  is 
not  payable  unless  there  be  a  carrying  on  or  doing  of 
business  in  the  designated  capacity,  and  this  is  made  the 
occasion  for  the  tax,  measured  by  the  standard  prescribed. 
The  difference  between  the  acts  is  not  merely  nominal, 

1  (1899)  173  U.  S.  509. 

2  In  Spreckles  Sugar  Ref.  Co.  v.  McClain  (1904)  192  U.  S.  397,  it  was 
held  that  a  tax  of  one  quarter  of  one  per  cent,  of  the  gross  earnings  of 
sugar  refineries  having  a  gross  income  of  over  $250,000,  was  an  excise 
levied  on  the  business,  and  not  a  tax  upon  the  property  or  upon  the 
income. 

;  Corporation  Tax  Cases  (1911)  220  U.  S.  107. 
150. 


188       THE  AMERICAN  CONSTITUTION      §  79 

but  rests  upon  substantial  differences  between  the  mere 
ownership  of  property  and  the  actual  doing  of  business 
in  a  certain  way." 

The  inconvenience  to  the  national  government  of  the 
decision  that  taxes  on  incomes  are  direct  taxes,  and  so  can 
only  be  levied  in  proportion  to  population,  led  to  the 
adoption  in  1913  of  the  Sixteenth  Amendment,  which 
declares : 

"The  Congress  shall  have  power  to  lay  and  collect 
taxes  on  incomes,  from  whatever  source  derived,  without 
apportionment  among  the  several  States,  and  without 
regard  to  any  census  or  enumeration." 

It  was  feared  by  some  when  the  Sixteenth  Amendment 
"was  before  the  country  that  the  words  "from  whatever 
source  derived "  would  give  the  amendment  a  wider  scope 
than  merely  withdrawing  income  taxes  from  the  class  of 
direct  taxes,  and  would  allow  income  taxes  to  be  levied 
which  for  other  reasons  would  have  been  previously  un- 
constitutional.1 It  was  declared,  however,  by  the  late 
Chief  Justice  White  for  a  unanimous  court  that  the  Six- 
teenth Amendment  was  not  intended  to  give  to  Congress 
any  power  of  taxation  not  formerly  possessed.2  In  the 
same  case  the  court  made  it  clear  that  as  a  result  of  the 
amendment  all  federal  income  taxes  are  now  to  be  con- 
sidered excises. 

In  1920  the  Supreme  Court  by  a  five  to  four  vote  decided 
that  a  stock  dividend  is  capital  and  not  income,  and  that, 
therefore,  a  tax  upon  such  dividends  is  a  direct  tax,  and, 
notwithstanding  the  Sixteenth  Amendment,  must  be  levied 
in  proportion  to  population.3  The  position  of  the  majority 
is  that  in  a  stock  dividend  nothing  is  separated  from  the 
assets  of  the  corporation  and  delivered  to  the  stockholder, 
but  that  as  the  result  of  the  delivery  to  him  of  new  certi- 

1  E.g.,  taxes  on  the  incomes  of  state  officials,  and  incomes  from  state 
bonds.  See  sec.  82. 

a  Brushaber  v.  Union  Pac.  R.  R.  (1916)  240  U.  S.  I. 
3  Eisner  v.  Macomber  (1920)  252  U.  S.  189. 


§  79  TAXATION  189 

ficates  his  new  and  old  certificates  represent  the  same  inter- 
est in  the  assets  of  the  corporation  as  did  his  old  certificates 
before  the  transaction.  Mr.  Justice  Holmes  and  Mr.  Justice 
Day  admit  that  this  is  so  in  principle,  but  claim  that 
1 '  income ' '  was  used  in  the  amendment  in  a  non-technical 
sense  which  would  cover  stock  dividends.  Mr.  Justice  Bran- 
deis  and  Mr.  Justice  Clarke  thought  that  the  issuing  of  a 
stock  dividend  is  equivalent  to  the  issuing  of  a  cash  dividend 
with  a  preferential  opportunity  to  subscribe  for  a  new  issue 
of  stock. 

As  we  have  seen  the  Supreme  Court  held  in  1873  in  the 
case  of  Scholey  v.  Rew*  that  a  tax  on  the  succession  to  real 
estate  was  not  a  direct  tax.  In  the  course  of  the  argument 
in  that  case  the  court  said  that  an  inheritance  tax  was  not 
distinguishable  from  an  income  tax.  An  income  tax  having 
been  held  in  the  Pollock  case  to  be  a  direct  tax,  a  federal  tax 
on  the  succession  to  personal  property  not  levied  in  propor- 
tion to  the  census  was  in  Knowlton  v.  Moore2  attacked  as 
unconstitutional  on  the  ground  that  it  was  direct.  The 
Supreme  Court  in  that  case,  however,  declared  that  a  tax 
on  succession  to  property  is  not  a  tax  on  property  solely 
because  of  ownership,  as  an  income  tax  was  held  to  be,  but 
is  a  tax  on  the  privilege  of  the  beneficiary  to  succeed  to 
property,  and  so  is  an  excise  and  not  a  direct  tax.  The 
court  pointed  out  that  Scholey  v.  Rew  was  not  overruled  or 
disapproved  in  the  Pollock  case,  but  that  it  was  there  dis- 
tinguished on  the  ground  that  what  was  involved  in  the 
earlier  inheritance  tax  case  was  an  excise.  In  Knowlton  v. 
Moore  the  court  took  considerable  pains  to  show  that  the 
tax  was  not  levied  upon  the  right  of  the  deceased  to  trans- 
mit his  estate,  but  was  a  tax  upon  the  privilege  of  each 
beneficiary  to  take  the  particular  share  to  which  he  was 
entitled.  Earlier  federal  statutes  had  contained  a  probate 
tax  upon  the  whole  estate,3  as  well  as  an  inheritance  tax 
upon  the  distributive  shares,  but  the  probate  tax  feature 
was  not  contained  in  the  later  statute.  Whether  a  tax  upon 

1  23  Wallace  331. 

a  (1900)  178  U.  S.  41.  3  Ibid.,  51. 


190       THE  AMERICAN  CONSTITUTION       §  80 

the  whole  estates  of  deceased  persons  is  a  direct  tax  or 
an  excise,  has  not  been  decided  by  the  Supreme  Court. 
It  would  approach  more  closely  a  tax  on  the  property 
because  of  ownership,  than  would  an  inheritance  tax, 
and  yet  there  seems  no  reason  why  it  should  not  be 
viewed  as  a  tax  upon  the  privilege  of  transmitting  prop- 
erty at  death,  measured  by  the  amount  of  the  property 
transmitted.  ^ 

§80.  Uniformity  in  Taxation.  As  is  pointed  out  else- 
where the  "equal  protection"  clause  of  the  Fourteenth 
Amendment  constitutes  a  limitation  upon  the  taxing  power 
of  the  States,  requiring  that  classification  based  upon  geo- 
graphical areas,  or  upon  subject-matter,  or  upon  the  persons 
subject  to  a  tax  be  reasonable. z  But  the  Fourteenth  Amend- 
ment applies  only  to  the  States,  and  there  is  no  equal  pro- 
tection clause  as  a  limitation  upon  the  national  government. 
It  has  been  suggested  that  a  classification  for  federal  tax- 
ation might  be  so  arbitrary  as  to  show  that  the  statute  was 
not  enacted  for  revenue,  but  merely  to  oppress  certain 
persons  or  interests,  and  that  under  such  circumstances 
the  taking  of  property,  though  in  the  form  of  taxation, 
might  not  constitute  due  process  under  the  Fifth  Amend- 
ment.2 There  is,  however,  an  important  constitutional 
limitation  upon  federal  taxation,  besides  that  which  has  just 
been  discussed  with  regard  to  direct  taxes,  and  which  applies 
to  all  taxes  which  are  not  direct,  namely,  that  "all  duties, 
imposts  and  excises  shall  be  uniform  throughout  the  United 
States. ' ' 3  The  term  ' '  excises ' '  has  generally  the  meaning  of 
taxes  on  a  privilege  such  as  that  of  being  a  corporation,  or  on 
some  act  or  transaction,  such  as  consumption,  sale,  or  manu- 
facture. The  terms ' '  imposts ' '  and ' '  duties, ' '  though  some- 
times used  to  include  all  taxes,  are  more  properly  applied 
to  taxes  on  exports  and  imports.  They  were  clearly  used 
in  the  narrower  and  more  usual  sense  in  the  constitutional 
clause  just  quoted,  for  they  are  there  set  over  against  direct 
taxes. 

1  See  chap.  33. 

a  Sec.  157.  a  Art.  I,  sec.  8,  par.  I. 


§  80  TAXATION  191 

The  meaning  of  the  constitutional  provision  that  duties, 
imposts,  and  excises  shall  be  "uniform  throughout  the 
United  States,"  was  not  finally  passed  upon  until  the  gradu- 
ated inheritance  tax,  contained  in  the  War  Revenue  Act  of 
1898,'  was  upheld  in  Knowlton  v.  Moore.2  That  statute 
exempted  legacies  under  $10,000,  classified  the  rate  of  tax 
according  to  relationship,  and  provided  for  a  rate  progress- 
ing according  to  the  amount  of  the  legacy.  The  court 
summarized  the  opposing  views  of  the  meaning  of  the 
constitutional  command  as  follows: 

"The  two  contentions  then  may  be  summarized  by 
saying  that  the  one  asserts  that  the  Constitution  prohibits 
the  levy  of  any  duty,  impost  or  excise  which  is  not 
intrinsically  equal  and  uniform  in  its  operation  upon 
individuals,  and  the  other  that  the  power  of  Congress  in 
levying  the  taxes  in  question  is  by  the  terms  of  the 
Constitution  restrained  only  by  the  requirement  that 
such  taxes  be  geographically  uniform."3 

The  argument  of  those  who  impeached  the  statute  was 
based,  first,  upon  the  interpretation  of  provisions  in  state 
constitutions,  requiring  that  taxes  be  equal  and  uniform,  to 
the  effect  that  such  constitutional  provisions  require  that 
the  burden  of  taxes  shall  rest  with  substantial  equality  upon 
all  persons,4  and,  second,  that  in  Hylton  v.  United  States5 

1  Act  of  June  13,  1898,  chap.  448,  30  Stat.  448. 

2  (1900)  178  U.  S.  41. 

3  Ibid.,  84. 

4  Stimson,  Federal  and  State  Constitutions  of  the  United  States,  274; 
State  v.  Gorman  (1889)  40  Minn.  232;  State  v.  Ferris  (1895)  53  Ohio 
314;  State  v.  Switzler  (1898)  143  Mo.  287. 

s  (1796)  3  Dallas  171.  Justice  Patterson  said  (p.  180):  "Uniformity 
is  an  instant  operation  on  individuals,  without  the  intervention  of 
assessments,  or  any  regard  to  States,  and  is  at  once  easy,  certain  and 
efficacious."  Justice  Iredellsaid  (p.  181)  that  if  there  were  a  tax  which 
was  neither  direct  nor  a  duty,  impost  or  excise,  "I  should  presume  the 
tax  ought  to  be  uniform,  because  the  present  Constitution  was  particu- 
larly intended  to  affect  individuals,  and  not  States,  except  in  particular 
cases  specified." 


192       THE  AMERICAN  CONSTITUTION      §  80 

and  United  States  v.  Singer'1  the  Supreme  Court  had  declared 
in  favor  of  intrinsic  uniformity. 

As  the  court  pointed  out,  the  language  in  the  Hylton  case 
does  not  justify  the  interpretation  put  upon  it.  The  judges 
there  were  merely  contrasting  the  purpose  of  the  Con- 
stitution to  allow  Congress  to  tax  individuals  directly, 
with  the  provisions  of  the  Articles  of  Confederation,  which 
limited  Congress  to  the  making  of  requisitions  or  assess- 
ments upon  the  various  States.  In  the  Singer  case,  though 
the  word  ''equal"  is  used,  it  seems  clear  that  what  the  court 
was  emphasizing  was  that  the  treatment  under  the  statute 
was  equal  in  all  localities — i.e.,  that  the  tax  was  geographi- 
cally uniform.  The  court  set  over  against  these  most 
equivocal  citations  in  support  of  intrinsic  uniformity  the 
following  language  of  Mr.  Justice  Miller  in  the  Head  Money 
Cases2: 

"The  tax  is  uniform  when  it  operates  with  the  same 
force  and  effect  in  every  place  where  the  subject  of  it 
is  found.  The  tax  in  this  case,  which,  as  far  as  it  can  be 
called  a  tax,  is  an  excise  duty  on  the  business  of  bringing 
passengers  from  foreign  countries  into  this  by  ocean  navi- 
gation, is  uniform,  and  operates  precisely  alike  in  every 

1  (1872)  15  Wallace  in,  121:  "The  law  is  not  in  our  judgment  sub- 
ject to  any  constitutional  objection.  The  tax  imposed  upon  the  distiller 
is  in  the  nature  of  an  excise,  and  the  only  limitation  upon  the  power  of 
Congress  in  the  imposition  of  taxes  of  this  character  is  that  they  shall  be 
uniform  throughout  the  United  States.  The  tax  here  is  uniform  in  its 
operation;  that  is,  it  is  assessed  equally  upon  all  manufacturers  of  spirits, 
wherever  they  are.  The  law  does  not  establish  one  rule  for  one  distiller 
and  a  different  rule  for  another,  but  the  same  rule  for  all  alike." 

a  (1884)  1 12  U.  S.  580,  594.  It  was  sought  to  discount  the  authorita- 
tiveness  of  this  language  by  insisting  that  in  the  Head  Money  Cases  the 
question  of  taxation  was  not  involved,  but  only  the  constitutional 
provision  that  "no  preference  shall  be  given  by  any  regulation  of  com- 
merce or  revenue  to  the  ports  of  one  State  over  those  of  another."  But 
the  court  pointed  out  that  this  clause  against  preference  and  the  uni- 
formity clause  as  to  taxation  originally  stood  together,  and  were  adopted 
together  as  part  of  one  general  scheme  for  geographical  uniformity,  and 
were  only  separated  after  adoption.  Knowlton  v.  Moore  (1900)  178 
11.8.41,105. 


§  8o  TAXATION  193 

port  of  the  United  States,  where  such  passengers  can  be 
landed." 

The  court  in  an  elaborate  review  of  the  whole  question 
presents  the  following  considerations  in  support  of  geo- 
graphical, as  opposed  to  intrinsic  uniformity1:  If  the 
requirement  that  duties,  imposts, and  excises  be  "uniform," 
means  that  they  shall  rest  equally  upon  all  persons,  then 
the  words  "throughout  the  United  States"  are  mere  sur- 
plusage, but  they  are  the  appropriate  words  to  use  to  indi- 
cate geographical  uniformity.  At  the  time  of  the  adoption 
of  the  Constitution  the  idea  of  limiting  the  power  of  levying 
duties,  imposts, and  excises  by  an  intrinsic  rule  of  uniformity 
had  not  been  suggested,  much  less  acted  upon,  in  England  or 
in  any  of  the  United  States.  It  is  of  great  importance  that 
such  a  rule  has  never  been  applied  by  Congress  in  federal 
legislation  under  the  constitutional  clause  in  question,  but 
that  on  the  contrary,  from  the  time  of  the  first  adminis- 
tration to  the  present  time  taxes  have  been  levied  without 
question  which  have  not  conformed  to  that  rule,  but  only 
to  a  rule  of  geographical  uniformity.  One  of  the  great 
weaknesses  of  the  government  under  the  Articles  of  Con- 
federation was  its  lack  of  power  to  tax.  Congress 
attempted  without  success  to  obtain  from  the  States  the 
grant  of  such  a  power  which  should  operate  generally 
throughout  the  United  States.  When  in  the  Constitutional 
Convention  it  was  proposed  to  give  to  the  national  govern- 
ment control  of  foreign  commerce  and  the  power  to  tax 
imports,  it  was  feared  that  one  group  of  States  might  pro- 
cure legislation  which  would  favor  the  ports  of  some  States 
over  those  of  others.  To  meet  this  possibility  it  was 
proposed  that  no  "privilege  or  immunity  be  granted  to  any 
vessel  on  entering  or  clearing  out,  or  paying  duties  or 
imposts  in  one  State  in  preference  to  another."  The 
proposal  was  later  put  into  the  following  form,  and  in 
that  form  agreed  to;  except  that  the  word  "tonnage"  was 
struck  out : 

1  Kuowlton  v.  Moore  (1900)  178  U.  S.  41,  86  to  106. 

13 


194       THE  AMERICAN  CONSTITUTION      §  81 

"Nor  shall  any  regulation  of  commerce  or  revenue  give 
preference  to  the  ports  of  one  State  over  those  of  another, 
or  oblige  vessels  bound  to  or  from  any  State  to  enter, 
clear,  or  pay  duties  in  another;  and  all  tonnage  duties, 
imposts  and  excises,  laid  by  the  legislature,  shall  be  uni- 
form throughout  the  United  States." 

Thus  it  is  clear  that  both  of  these  provisions,  which  were 
later  separated  in  order  to  put  the  taxation  clauses  together, 
were  adopted  to  quiet  the  fear  of  the  States  that  there 
might  be  discrimination  in  national  legislation  between 
different  localities. 

Eleven  years  later  in  the  Corporation  Tax  Cases1  the  court 
said: 

"As  we  have  seen,  the  only  limitation  upon  the  author- 
ity conferred  is  uniformity  in  laying  the  tax,  and  uniform- 
ity does  not  require  the  equal  application  of  the  tax  to  all 
persons  or  corporations  who  may  come  within  its  oper- 
ation, but  is  limited  to  geographical  uniformity  through- 
out the  United  States.  This  subject  was  fully  discussed 
and  set  at  rest  in  Knowlton  v.  Moore,  178  U.  S.  41,  supra, 
and  we  can  add  nothing  to  the  discussion  contained  in 
that  case." 

§8 1.  Taxes  on  Exports.  One  of  the  explicit  con- 
stitutional limitations  upon  the  national  government  is 
contained  in  the  provision  that,  "No  tax  or  duty  shall  be 
laid  on  articles  exported  from  any  State."2  The  somewhat 
similar  provision  that, 

"No  State  shall,  without  the  consent  of  Congress, 
lay  any  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its 
inspection  laws," 

has  been  interpreted  as  applying  only  to  imports  and 
exports  to  and  from  foreign  countries  and  not  to  imports 

1  (1911)  220 U.S.  107. 
*  Art.  I,  sec.  9,  par.  5. 


§  8i  TAXATION  195 

and  exports  moving  between  States. T  But  it  is  to  be  noted 
that  the  prohibition  which  is  directed  against  the  national 
government  applies  to  exports  "from  any  State,"  and  in  the 
case  which  held  that  the  States  are  not  prohibited  to  tax 
goods  moving  from  State  to  State,  by  the  clause  quoted 
above,  it  was  assumed  that  Congress  could  not  tax  goods 
exported  from  one  State  to  another. 2  In  the  case  of  Dooley 
v.  United  States*  where  the  Supreme  Court  had  before  it  the 
constitutionality  of  an  act  of  Congress  imposing  a  tax  upon 
goods  imported  into  Porto  Rico  from  the  United  States,  Mr. 
Justice  Brown,  delivering  the  opinion  of  the  court,  although 
declaring  that  "it  is  not  intended  by  this  opinion  to  intimate 
that  Congress  may  lay  an  export  tax  upon  merchandise 
carried  from  one  State  to  another,"  seems  to  be  of  the 
opinion  that  the  restriction  upon  the  power  of  Congress  to 
tax  exports  applies  only  to  exports  to  foreign  countries. 
The  decision  of  the  court,  however,  appears  actually  to  be 
based  upon  the  theory  that  the  tax  was  not  upon  exports 
from  the  United  States,  but  upon  imports  into  Porto  Rico. 
Mr.  Justice  White  in  concurring  seems  to  be  clear  that 
Congress  can  tax  exports  from  State  to  State.  The  Chief 
Justice  wrote  a  dissenting  opinion,  concurred  in  by  three 
other  members  of  the  court,  in  which  he  strongly  asserted 
that  it  is  the  purpose  of  the  Constitution  to  prohibit  the 
imposition  by  Congress  of  a  tax  upon  the  exports  from  any 
State  to  any  point  outside  of  the  State.  This  case  would 
not  seem  to  settle  the  question,  but  it  is  clear  from  the 
discussion  in  the  preceding  section  that,  if  a  tax  on  exports 
from  State  to  State  is  constitutional,  it  must  be  levied  uni- 
formly in  all  of  the  States. 

The  provision  against  the  taxation  of  exports  does  not 
prevent  the  levy  of  a  tax  upon  goods  or  upon  the  manu- 
facture of  goods  simply  because  a  part  of  them  are  destined 
for  subsequent  export,  as  long  as  the  tax  is  not  laid  upon 
them  because  they  are  to  be  exported,  and  as  long  as  the 

1  Woodruff  v.  Parham  (1868)  8  Wallace  123.     See  sec.  175. 

9  Ibid.  t  132. 

3(1901)  182  U.  S,  222, 


196       THE  AMERICAN  CONSTITUTION      §  81 

process  of  exportation  has  not  begun;  and  the  process  of 
exportation  does  not  begin  until  they  are  started  in  course 
of  transportation,  or  are  delivered  to  a  common  carrier  for 
that  purpose.1 

The  Supreme  Court  has  also  held  that,  when  a  tax  is 
placed  upon  tobacco  manufactured  for  domestic  con- 
sumption, and  tobacco  manufactured  for  export  is  exempted 
from  this  tax,  but  it  is  required  that  tobacco  for  export  be 
stamped,  twenty-five  cents  being  paid  for  the  stamp,  this 
amount  to  be  collected  merely  to  cover  the  expense  of 
administering  the  law,  this  is  not  a  tax  on  exports,  but  a 
legitimate  method  of  preventing  the  government's  being 
defrauded  of  the  tax  properly  levied  on  tobacco  destined 
for  domestic  consumption.2  On  the  other  hand  decisions 
show  that  the  constitutional  prohibition  "requires  not 
simply  an  omission  of  a  tax  upon  the  articles  exported,  but 
also  a  freedom  from  any  tax  which  directly  burdens  the 
exportation."3  In  conformity  with  this  principle  it  was 
held  that 

"a  stamp  tax  on  a  bill  of  lading,  which  evidences  the 
export  is  just  as  clearly  a  burden  on  the  exportation 
as  a  direct  tax  on  the  article  mentioned  in  the  bill  of 
lading  as  the  subject  of  the  export."4 

So  a  stamp  tax  on  charter  parties  for  the  carriage  of  cargoes 
to  foreign  ports  has  been  held  an  unconstitutional  burden 
upon  exportation, s  and  a  tax  on  policies  of  marine  insurance 
on  articles  being  exported  has  also  been  condemned  as  in 
conflict  with  the  Constitution. 6 

'Turpin  v.  Burgess  (1886)  117  U.  S.  504;  Cornell  v.  Coyne  (1904) 
192  U.  S.  418. 

a  Pace  v.  Burgess  (1875)  92  U.  S.  372. 

3  Fairbank  v.  United  States  (1901)  181  U.  S.  283,  293. 

«  Ibid. 

s  United  States  v.  Hvoslef  (1915)  237  U.  S.  I. 

6  Thames  &  Mersey  Mar.  Ins.  Co.  v.  United  States  (1915)  237  U.  S. 
19.  A  statute  requiring  exporters  to  take  out  a  license,  paying  a  fee 
therefor,  would  probably  be  unconstitutional.  Brown  v.  Maryland 
(1827)  12  Wheaton  419,  445. 


§  82  TAXATION  197 

In  Peck  &  Company  v.  Lowe1  it  appeared  that  an  income 
tax  was  levied  upon  a  domestic  corporation,  more  than  two 
thirds  of  whose  income  was  derived  from  the  purchase  of 
goods  in  the  United  States  and  their  shipment  to  foreign 
countries  for  sale.  It  was  contended  that  the  tax  on  so 
much  of  its  income  as  was  derived  from  that  source  was 
unconstitutional.  The  court  said2: 

"The  tax  in  question  is  unlike  any  of  those  heretofore 
condemned.  It  was  not  laid  on  articles  in  course  of 
exportation  or  on  anything  which  inherently  or  by  the 
usages  of  commerce  is  embraced  in  exportation  or  any  of 
its  processes.  On  the  contrary,  it  is  an  income  tax  laid 
generally  on  net  incomes,  ...  At  most  exportation  is 
affected  only  indirectly  and  remotely.  The  tax  is  levied 
after  exportation  is  completed,  after  all  expenses  are  paid, 
and  losses  adjusted,  and  after  the  recipient  of  the  income 
is  free  to  use  it  as  he  chooses.  Thus  what  is  taxed — the 
net  income — is  as  far  removed  from  exportation  as  are 
articles  intended  for  export  before  the  exportation 
begins." 

§82.  Miscellaneous  Limitations.  In  Collector  v.  Day3 
the  Supreme  Court  had  presented  to  it  the  question  whether 
the  federal  government  has  the  power  to  tax  the  salaries  of 
state  judges,  and  decided  that  it  has  not.  The  court 
admitted  that  there  is  no  express  prohibition  of  such  a  tax, 
but  rested  its  decision  upon  what  it  declared  to  be  a  neces- 
sary implication  from  our  dual  form  of  government  under 
the  Constitution.  The  States  are  sovereign  except  insofar 
as  they  have  surrendered  powers  to  the  central  government, 
and  one  of  their  sovereign  rights  is  the  maintenance  of  an 
independent  judiciary.  It  is  inconsistent  with  the  sovereign 
independence  of  the  States  that  the  federal  government 
should  have  the  power  to  levy  a  tax  upon  such  governmental 
agencies  as  the  members  of  the  state  judiciary,  or  upon  the 
salaries  received  by  the  state  judges  for  their  official 

'  (1918)  247  U.  S.  165. 

*Ibid.,  174.  a  (1870)  ii  Wallace  113. 


198       THE  AMERICAN  CONSTITUTION      §  82 

services. x  In  a  later  case  the  court  generalizes  on  this  subject 
saying : 

"The  right  of  the  States  to  administer  their  own  affairs 
through  their  legislative,  executive,  and  judicial  depart- 
ments, in  their  own  manner  through  their  own  agencies,  is 
conceded  by  the  uniform  decisions  of  this  court  and  by  the 
practice  of  the  federal  government  from  its  organization. 
This  carries  with  it  an  exemption  of  those  agencies  and 
instruments,  from  the  taxing  power  of  the  federal  govern- 
ment. If  they  may  be  taxed  lightly,  they  may  be  taxed 
heavily;  if  justly,  oppressively.  Their  operation  may 
be  impeded  and  may  be  destroyed,  if  any  interference  is 
permitted."2 

In  this  case  the  court  held  that  municipal  corporations  are 
governmental  agencies  of  the  States,  and  that  the  federal 
government,  therefore,  cannot  tax  the  income  of  such 
corporations.  Somewhat  later  it  was  held  that  a  tax  on  in- 
come from  securities  issued  by  municipal  corporations  is 
unconstitutional  as  a  tax  on  the  power  of  the  States  and 
their  instrumentalities  to  borrow  money.3  By  the  appli- 
cation of  the  same  principle  it  was  held  unconstitutional  to 
levy  a  federal  tax  on  bonds,  given  to  procure  licenses  to  sell 
liquor,  and  issued  by  a  municipality,  since  the  granting  of 
such  licenses  is  a  governmental  function,  and  the  giving  of 
the  bonds  is  part  of  the  same  transaction. 4 

It  has  been  held,  however,  that,  when  a  State  engages  in 
the  business  of  selling  liquor,  its  agents  may  constitutionally 
be  subjected  to  a  federal  internal  revenue  tax,  since  such  a 
tax  does  not  interfere  with  the  discharge  by  the  State  of  the 
ordinary  functions  of  government.5  Three  justices  dis- 

1  Conversely  it  has  been  held  that  the  States  may  not  tax  the  salaries 
of  officers  of  the  United  States.      Dobbins  v.  Commissioners  of  Erie 
County  (1842)  16  Peters  435. 

2  United  States  v.  Railroad  Company  (1872)  17  Wallace  322. 

3  Pollock  v.  Farmers'  L.  &  T.  Co.  (1895)  157  U.  S.  429,  586,  158  U.  S. 
601,  630. 

4  Ambrosini  v.  United  States  (1902)  187  U.  S.  i. 

s  South  Carolina  v.  United  States  (1905)  199  U.  S.  437. 


§  82  TAXATION  199 

sented  on  the  ground  that  the  selling  of  liquor  was  simply 
a  method  adopted  by  the  State  in  question  for  the  regulation 
of  the  liquor  traffic  under  its  police  power,  and  that  to  allow 
a  federal  tax  under  the  circumstances  was  inconsistent  with 
the  previous  decisions  of  the  court. 

The  right  of  the  national  government  to  levy  inheritance 
taxes  was  attacked  in  Knowlton  v.  Moore1  on  the  ground  that 
the  privilege  of  transmitting  property  is  entirely  under  the 
control  of  the  States,  and  that  if  the  right  of  Congress  to  tax 
this  privilege  is  recognized  it  may  go  so  far  as  to  take  all 
inheritances  by  means  of  taxation  and  so  wipe  out  the  States' 
power  of  control.  The  court,  however,  held  that  the  tax  did 
not  cast  a  burden  upon  the  power  of  the  States  to  tax,  but  is  a 
burden  cast  upon  the  recipient  of  property,  and  that  as  such 
it  is  constitutional.  In  Synder  v.  Bettman2  it  was  held  by  a 
court  divided  six  to  three  that  the  federal  government  may 
constitutionally  levy  an  inheritance  tax  upon  the  trans- 
mission of  property  by  legacy  to  States  or  to  municipal 
corporations,  the  argument  being  that  this  was  not  a  tax 
levied  upon  the  property  of  the  State  or  municipality,  nor 
does  it  interfere  with  the  exercise  of  a  governmental  func- 
tion, but  that  it  is  a  tax  upon  the  right  to  succeed  to  prop- 
erty.3 

In  the  Corporation  Tax  Cases*  the  court  denied  that 
the  fact  that  a  corporation  derives  its  existence  from  state 
action  prevents  the  imposition  of  a  federal  corporation  tax, 
declaring  that  such  a  tax  does  not  come  within  the  principle 
that  the  federal  government  cannot  levy  a  tax  which 
interferes  with  the  discharge  of  ordinary  governmental 
functions  by  the  States. 

1  (1900)  178  U.  S.  41. 

2  (1903)  190  U.  S.  249. 

3  The  court  relied  largely  upon  United  States  v.  Perkins  (1896)  163 
U.  S.  625,  in  which  it  was  held  that  a  State  may  levy  an  inheritance  tax 
upon  a  legacy  to  the  United  States.    The  minority  distinguished  this 
case  on  the  ground  that  the  States  control  the  devolution  of  property, 
and  so  have  a  basis  for  inheritance  taxes  which  does  not  exist  in  the  case 
of  the  federal  government. 

«  (1911)  220  U.  S.  107,  158. 


200       THE  AMERICAN  CONSTITUTION       §  83 

A  decision  of  some  interest  was  rendered  in  1920  in  the 
case  of  Evans  v.  Gore.1  The  court  held  that,  because  of  the 
constitutional  provision  that  federal  judges  shall  receive  "a 
compensation  which  shall  not  be  diminished  during  their 
continuance  in  office,"2  a  federal  income  tax  cannot  be 
levied  upon  the  net  income  of  a  federal  judge  in  which  is 
included  his  judicial  salary.  The  same  reasoning  would 
apply  to  exclude  the  salary  of  the  President  from  a  federal 
income  tax. 3  It  has  been  suggested  that  the  doctrine  of  the 
case  would  not  apply  to  a  judge  appointed,  or  to  a  President 
elected  after  the  passage  of  the  income  tax  law. 4 

§83.  Power  to  Borrow  Money,  Coin  Money,  and  Issue 
Legal  Tender  Notes.  One  of  the  express  powers  granted  to 
Congress  by  the  Constitution  is  "to  borrow  money  on  the 
credit  of  the  United  States."5  As  suggested  by  the  Com- 
mittee of  Detail  the  clause  read  "to  borrow  money  and  emit 
bills  on  the  credit  of  the  United  States."6  After  a  short 
debate  the  words  "and  emit  bills"  were  striken  out.  The 
debate  showed  a  considerable  feeling  that  the  national 
government  should  not  have  the  power  to  emit  bills  at  all. 
Part  of  the  delegates  seemed  to  be  in  favor  of  eliminating 
the  words  in  order  that  their  presence  might  not  seem  to 
encourage  the  omission  of  bills  by  the  national  government, 
while  being  of  the  opinion  that  the  power  to  borrow  money 
would  carry  with  it  the  power  to  emit  bills  when  necessary. 
Madison  held  the  opinion  that  the  power  would  exist 
though  the  words  "and  emit  bills i'  were  taken  out,  and, 
therefore,  though  he  finally  voted  for  eliminating  them,  he 
saw  no  real  reason  for  doing  so,  suggesting,  instead,  that  a 
prohibition  to  make  bills  legal  tender  would  be  sufficient.7 

'  253  U.  S.  245. 

a  Art.  Ill,  sec.  I. 

J  Art.  II,  sec.  I,  par.  7. 

4  Thomas  Reed  Powell,  "Constitutional  Law  in  1919-1920, "  19  Mich. 
L.  Rev.,  117. 

*  Art.  I,  sec.  8,  par.  2. 

'Farrand,  The  Records  of  the  Federal  Convention,  vol.  ii,  p.  168. 
Congress  had  this  power  under  the  Articles  of  Confederation.  Art  IX. 
.,  pp.  308  to  310. 


§  83  TAXATION  201 

Congress  is  also  given  power  "to  coin  money,  regulate  the 
value  thereof,  and  of  foreign  coin."1 

As  we  have  already  seen,3  the  Supreme  Court  held  in 
M'Culloch  v.  Maryland"1  that,  in  order  to  carry  out  its 
express  fiscal  powers,  the  federal  government  under  its 
power  to  "make  all  laws  which  shall  be  necessary  and 
proper"  to  carry  out  the  powers  expressly  conferred,  has  the 
right  to  establish  and  conduct  a  bank.  ^  It  appears  from  the 
statement  of  the  case  that  the  bank  issued  bank  notes,  as 
well  as  doing  other  ordinary  banking  business,-  but  no 
question  was  made  as  to  the  right  of  the  government  to 
issue  such  notes.  In  fact  Madison's  view  seems  always  to 
have  been  tacitly  accepted,  that  the  national  government 
may  issue  bills  of  credits  as  part  of  its  power  to  borrow 
money.  However,  when  the  national  government  sought 
to  give  to  its  notes  the  character  of  a  legal  tender,  a  much 
more  difficult  question  was  raised.  In  Hepburn  v.  Griswold4 
the  Supreme  Court,  three  justices  dissenting,  held  that 
federal  legislation  which  attempted  to  make  government 
notes  a  legal  tender  for  the  payment  of  existing  debts  between 
private  individuals  was  unconstitutional.  The  legislation 
was  enacted  during  the  Civil  War.  The  court  admitted 
that  there  might  be  an  element  of  convenience  in  making  the 
notes  issued  a  legal  tender,  but  asserted  that  the  govern- 
ment's borrowing  power  could  be  made  entirely  effective  if 
the  notes  issued  by  it  did  not  have  that  character,  and 
declared  that  it  would  be  contrary  to  the  spirit  of  justice 
which  pervaded  the  whole  Constitution,  would  be  taking 
private  property  for  a  private  use,  and  would  be  depriving 
persons  of  property  without  due  process  of  law,  if  creditors 
could  be  compelled  to  take  these  notes  in  payment  of  pri- 
vate debts  in  place  of  gold  and  silver  coin. 

1  Art.  I,  sec.  8,  par.  5.  States  may  not  coin  money,  emit  bills  of 
credit,  or  make  anything  but  gold  and  silver  legal  tender.  Art.  I,  sec. 
10,  par.  i.  See  sec.  173.  Power  is  given  to  the  national  government  to 
punish  counterfeiting.  Art  I,  sec.  8,  p.  6.  See  sec,  133. 

» Sec.  59. 

s  (1819)  4  Wheaton  316. 

4  (1869)  8  Wallace  603. 


202       THE  AMERICAN  CONSTITUTION      §  83 

A  year  later,  there  being  two  new  justices  on  the  supreme 
bench,  Hepburn  v.  Griswold  was  overruled  by  a  court 
divided  five  to  four. x  In  the  first  place  the  court  declared 
that  an  implied  power  under  the  Constitution 

"may  be  deduced  fairly  from  more  than  one  of  the  sub- 
stantive powers  expressly  defined,  or  from  them  all 
combined.  It  is  permissible  to  group  together  any  num- 
ber of  them  and  infer  from  them  all  that  the  power 
claimed  has  been  conferred."2 

The  court  then  proceeded  to  deduce  the  power  exercised 
from  the  power  to  carry  on  war,  and  from  the  power  to  coin 
money.  In  this  latter  connection  the  court  laid  stress  upon 
the  fact  that  governments  normally  have  the  power  to 
declare  what  is  money,  that  this  power  is  expressly  denied 
to  the  States,  and  that  generally  when  powers  are  denied 
to  the  States  it  is  in  order  that  the  federal  power  may  be 
more  complete.  The  court  held  that  to  make  government 
notes  legal  tender  was  a  helpful  and  appropriate  method 
of  financing  the  war,  which  was  not  precluded  by  the  fact 
that  some  other  method  might  have  been  devised.  The 
court  denied  that  the  obligations  of  debtors'  contracts  were 
impaired,  since  they  were  obligated  still  to  pay  in  money,  and 
also  denied  that  the  federal  government  was  forbidden  to 
impair  contracts.  As  to  the  argument  that  the  legisla- 
tion was  in  conflict  with  the  due  process  clause  of  the  Fifth 
Amendment,  the  court  said :  "It  has  never  been  supposed 
to  have  any  bearing  upon,  or  to  inhibit  laws  that  indirectly 
work  harm  and  loss  to  individuals," — citing  tariff  and  em- 
bargo laws,  and  the  reduction  in  the  weight  of  gold  coins. 

Some  years  later  this  decision  was  affirmed,  only  one 
justice  dissenting,  and  its  application  extended  to  peace 
time  legislation.3  The  court,  reviewing  the  case  of 
M'Culloch  v.  Maryland,4  declared  that  the  words  of  the 

1  Legal  Tender  Cases  (Knox  v.  Lee;  Parker  v.  Davis)  (1870)  12  Wal- 
lace 457. 

*  Ibid.,  534- 

3  Legal  Tender  Case  (Juilliard  v.  Greenman)  (1884)  no  U.  S.  421. 

4  (1819)  4  Wheaton  316. 


§  83  TAXATION  203 

Constitution  giving  Congress  power  to  make  laws 
*  *  necessary  and  proper "  for  carrying  out  the  powers  given 
elsewhere  in  the  Constitution 

"are  not  limited  to  such  measures  as  are  absolutely  and 
indispensably  necessary,  without  which  the  powers  granted 
must  fail  of  execution;  but  they  include  all  appropriate 
means  which  were  conducive  or  adapted  to  the  end  to  be 
accomplished,  and  which  in  the  judgment  of  Congress 
will  most  advantageously  effect  it."1 

The  court  then  concludes  that  the  exercise  of  the  power  to 
issue  legal  tender  notes,  ' '  not  being  prohibited  to  Congress 
by  the  Constitution,  it  is  included  in  the  power  expressly 
granted  to  borrow  money  on  the  credit  of  the  United 
States."2  Congress  being  empowered  to  borrow  money  on 
the  credit  of  the  United  States,  and  it  being  admitted  that 
for  that  purpose  it  might  issue  bills  or  notes  of  credit,  the 
court  felt  that  it  could  not  say  that  the  making  of  such  notes 
a  legal  tender  was  not  an  appropriate  means,  conducive  or 
adapted  to  the  end  to  be  accomplished,  especially  in  view  of 
the  fact  that  all  sovereign  States,  including  the  States  of  the 
Union  before  they  were  prohibited  by  the  Constitution, 
have  exercised  the  power  of  determining  what  shall  be  a 
legal  tender.  The  court  admitted  that  some  members  of 
the  Constitutional  Convention  were  much  opposed  to  paper 
money,  but  did  not  feel  concluded  by  this  consideration,  in 
view  of  the  fact  that  no  prohibition  was  embodied  in  the 
Constitution.  The  court  felt  that  its  position  was  fortified 
rather  than  weakened  by  the  fact  that  Congress  is  vested 
with  the  exclusive  exercise  of  the  analogous  power  of  coining 
money. 3 

1  Legal  Tender  Case  (1884)  no  U.  S.  421,  440. 

2  Ibid.,  448. 

a  The  court  seems  perhaps  rather  to  confuse  than  to  clarify  the 
grounds  of  its  decision  by  the  following  summary  (p.  449):  "Congress, 
as  the  legislature  of  a  sovereign  nation  empowered  by  the  Constitution 
1  to  lay  and  collect  taxes,  to  pay  the  debts  and  provide  for  the  common 
defense  and  general  welfare  of  the  United  States/  and  'to  borrow  money 
on  the  credit  of  the  United  States,'  and  '  to  coin  money  and  regulate  the 


204       THE  AMERICAN  CONSTITUTION      §  84 

We  have  undoubtedly  in  the  cases  just  discussed  a  liberal 
application  of  the  doctrine  of  implied  powers,  and  one 
which  has  not  escaped  strong  criticism.1  But  it  is  to  be 
noted  that  the  court  in  upholding  the  legal  tender  legis- 
lation, though  adverting  to  the  fact  that  the  power  to  make 
bills  or  notes  a  legal  tender  is  denied  to  the  States,  and  also 
to  the  fact  that  the  power  to  determine  what  shall  be  a  legal 
tender  normally  resides  in  sovereign  states,  does  not  rest 
the  national  power  on  either  of  these  facts,  but  is  careful  to 
base  it  upon  other  powers  expressly  given. 

§  84.  Publicity  in  the  Expenditure  of  Public  Moneys.  The 
Constitution  provides  that, 

"No  money  shall  be  drawn  from  the  treasury  but  in 
consequence  of  appropriations  made  by  law;  and  a  regu- 
lar statement  and  account  of  the  receipts  and  expendi- 
tures of  all  public  money  shall  be  published  from  time 
to  time."8 

Franklin  proposed  that  moneys  should  only  be  drawn 
from  the  public  treasury  upon  appropriation  originating 
in  the  lower  house.  This  suggestion  was  carried  into  the 


value  thereof  and  of  foreign  coin';  and  being  clearly  authorized,  as  inci- 
dental to  the  exercise  of  those  great  powers,  to  emit  bills  of  credit,  to 
charter  national  banks,  and  to  provide  a  national  currency  for  the  whole 
people,  in  the  form  of  coin,  treasury  notes,  and  national  bank  bills;  and 
the  power  to  make  the  notes  of  the  government  a  legal  tender  in  payment 
of  private  debts  being  one  of  the  powers  belonging  to  sovereignty  in 
other  civilized  nations,  and  not  expressly  withheld  from  Congress  by  the 
Constitution;  we  are  irresistibly  impelled  to  the  conclusion  that  the 
impressing  upon  the  treasury  notes  of  the  United  States  the  quality  of 
being  a  legal  tender  in  payment  of  private  debts  is  an  appropriate  means, 
conducive  and  plainly  adapted  to  the  execution  of  the  undoubted  powers 
of  Congress,  consistent  with  the  letter  and  spirit  of  the  Constitution, 
and  therefore,  within  the  meaning  of  that  instrument,  'necessary  and 
proper  for  carrying  into  execution  the  powers  vested  by  this  Constitu- 
tion in  the  government  of  the  United  States.'" 

1  See  for  example  Tucker's  Constitution  of  the  United  States,  vol.  i,  pp. 
508  et  seq.;  Tiedeman,  The  Unwritten  Constitution  of  the  United  States^ 
135  and  136. 

•  Art.  I,  sec.  9,  par.  7. 


§  84  TAXATION  205 

report  of  the  Committee  of  Detail,  but  upon  consideration 
by  the  Convention  received  a  negative  vote,  though  no 
discussion  on  it  is  reported.  The  Committee  of  Eleven 
proposed  the  present  wording  of  the  first  clause,  which  was 
accepted  by  the  Committee  of  Style  and  by  the  Convention. 
The  second  clause  was  added  at  the  end  of  the  session  with 
little  debate.1  The  purposes  of  the  section  are  obvious — 
first,  that  Congress  shall  be  made  responsible  for  all  expendi- 
tures, and  shall  only  make  them  by  a  regularly  enacted  law 
subject  to  the  President's  veto,  and,  second,  that  publicity 
shall  be  given  to  expenditures,  so  that  the  country  may 
know  how  its  money  is  being  used. 

1  Farrand,  The  Records  of  the  Federal  Convention,  vol.  i,  pp.  523,  539, 
vol.  ii,  pp.  178,  280,  505,  568,  618. 


CHAPTER  VIII 

INTERSTATE  AND  FOREIGN  COMMERCE 

§85.  The  Commerce  Clause. *  As  has  been  pointed  out  in 
the  first  chapter  the  real  moving  cause  of  the  Constitutional 
Convention  was  the  commercial  situation,  which  was 
rapidly  becoming  intolerable.  After  the  Revolution  mutual 
jealousies  held  sway,  resulting  in  trade  discriminations, 
and  in  disputes  as  to  the  control  of  bays  and  navigable 
streams.  It  is  not  surprising  then  that  it  was  agreed 
without  discussion  to  vest  in  the  national  government 
control  of  foreign  and  interstate  commerce.  The  Com- 
mittee of  Detail  recommended  that  Congress  be  given 
power  "to  regulate  commerce  with  foreign  nations  and 
among  the  several  States,"  which  was  agreed  to  without 
debate  or  dissent.  It  having  been  suggested  that  Congress, 
among  other  powers  should  be  given  the  power  to  regulate 
affairs  with  the  Indians,  the  committee  to  which  these 
suggestions  were  referred,  recommended  that  this  be 
accomplished  by  adding  to  the  clause  already  approved  the 
words  "and  with  the  Indian  tribes,"  which  was  agreed  to, 
also  without  dissent  or  debate.  In  this  form  the  commerce 
clause  was  reported  by  the  Committee  of  Style,  and  in  this 
form  it  was  adopted.2  The  constitutional  provision, 
therefore,  reads:  "Congress  shall  have  power  ...  to 

1  As  to  Admiralty  and  Maritime  Jurisdiction,  see  sec.  45. 

2  Farrand,  The  Records  of  the  Federal  Convention,  vol.  ii,  pp.    181, 
308,  321,  324,  493,  495,  569. 

See  similar  provisions  in  the  Australia  Constitution  Act  1900,  sec.  51 
(i) ,  discussed  in  Moore,  The  Constitution  of  Australia,  197  et  seq.t  and  in 
the  British  North  American  Act  1867,  sec.  91  (2),  discussed  in  Lefroy, 
Canada's  Federal  System,  230  et  seq. ,  and  Lefroy,  Constitutional  Law  of 
Canada,  102  et  seq. 

206 


§  86  INTERSTATE  COMMERCE  207 

regulate  commerce  with  foreign  nations  and  among  the 
several  States  and  with  the  Indian  tribes."1 

It  is  very  probable  that  all  that  was  in  the  minds  of  the 
framers  of  the  Constitution  when  they  drafted  the  com- 
merce clause  was  to  give  to  the  national  government  power 
to  prevent  the  States  from  interfering  with  the  freedom  of 
interstate  and  foreign  commerce,2  and,  in  fact,  for  nearly 
a  hundred  years  there  was  very  little  affirmative  legislation 
by  Congress  under  this  constitutional  provision,  and  very 
few  cases  based  upon  it  came  before  the  Supreme  Court. 
More  recently,  however,  it  has  been  the  basis  of  much 
congressional  legislation,  and  by  liberal  interpretation  a 
vast  field  of  regulation  has  been  brought  under  federal 
jurisdiction. 

§86.  What  Is  Commerce  ?  In  the  case  of  Gibbons  v. 
Ogden3  it  was  contended  that  commerce  included  only 
"traffic" — that  is,  "buying  and  selling,  or  the  interchange 
of  commodities" — and  that  it  did  not  include  navigation. 
But  Chief  Justice  Marshall  answered  that, 

"All  America  understands,  and  has  uniformly  under- 
stood, the  word  'commerce'  to  comprehend  navigation. 
.  .  .  The  word  used  in  the  Constitution,  then,  compre- 
hends, and  has  been  always  understood  to  comprehend, 
navigation  within  its  meaning;  and  a  power  to  regulate 
navigation,  is  as  expressly  granted,  as  if  that  term  had 
been  added  to  the  word  'commerce. '  "4 

In  New  York  v.  Miln5  Mr.  Justice  Barbour,  in  delivering 
the  opinion  of  the  court  holding  constitutional  a  State 
statute  requiring  masters  of  vessels  coming  to  the  port  of 
New  York  to  file  lists  of  passengers,  declared  that  "goods 
are  the  subject  of  commerce ' '  but ' '  persons  are  not. ' '  The 

1  Art.  I,  sec.  8,  par.  3. 

3  The  Federalist,  No.  42,  Fuller,  Interstate  Commerce,  7;  Addyston 
Pipe  &  Steel  Co.  (1899)  175  U.  S.  21 1,  227.  \ 

3  (1824)  9  Wheaton  I. 
*Ibid.,  190,  193. 
5(1837)  ii  Peters  102. 


208       THE  AMERICAN  CONSTITUTION      §  86 

case  does  not  stand  upon  this  distinction,  but  upon  the  ground 
that  the  statute  was  a  police  regulation, x  and,  if  the  justice 
thought  that  the  carrying  of  passengers  was  not  commerce 
within  the  constitutional  provision,  that  view  has  certainly 
not  been  accepted  by  the  Supreme  Court.  In  Gloucester 
Ferry  Company  v.  Pennsylvania2  it  was  said  that, 

' '  Commerce  among  the  States  consists  of  intercourse  and 
traffic  between  their  citizens,  and  includes  the  transpor- 
tation of  persons  and  property  and  the  navigation  of 
public  waters  for  that  purpose,  as  well  as  the  purchase, 
sale,  and  exchange  of  commodities." 

In  the  Interstate  Commerce  Act  we  have  congressional 
regulation  of  interstate  passenger  carriage  as  well  as  the 
carriage  of  goods,  and  no  doubt  has  been  expressed  that 
Congress  is  as  competent  to  regulate  the  one  as  the  other. 
The  White  Slave  Act  forbids  the  transportation  or  the 
procurement  of  the  transportation  of  women  from  State  to 
State  for  immoral  purposes.  In  holding  this  statute  con- 
stitutional the  court  said3: 

"Commerce  among  the  States,  we  have  said,  consists 
of  intercourse  and  traffic  between  their  citizens,  and 
includes  the  transportation  of  persons  and.  property. 
There  may  be,  therefore,  a  movement  of  persons  as  well 
as  of  property ;  that  is,  a  person  may  move  or  be  moved 
in  interstate  commerce." 

It  is  not  important  whether  a  person  transported  from 
State  to  State  is  transported  by  a  common  carrier  for  hire 
or  in  a  private  vehicle  gratuitously;  in  each  case  it  is  equally 
interstate  commerce.4  One  is  also  engaged  in  interstate 
commerce  when  he  carries  goods  in  his  own  wagon  from  one 
State  to  another  for  sale  at  their  destination5;  or  when  he 

1  Sec.  94.  3  (1885)  114  U.  S.  196,  203. 

»  Hoke  v.  United  States  (1913)  227  U.  S.  308,  320. 
4  Wilson  v.  United  States  (1914)  232  U.  S.  563,  567;  United  States  t>. 
Burch  (1915)  226  Fed.  974. 

*Kirmeyer  v.  Kansas  (1915)  236  U.  S.  568. 


§  86  INTERSTATE  COMMERCE  209 

pipes  oil  from  his  well  in  one  State  to  his  refinery  in  another 
for  ultimate  disposition  in  the  second  State1;  or  when  he 
buys  goods  in  one  State  and  carries  them  into  another 
State  on  his  own  person  for  his  own  use.2  But  suppose 
that  a  man  crosses  a  state  line  in  his  own  vehicle,  or  on  foot, 
neither  for  the  purpose  of  selling  or  buying,  nor  to  transport 
goods  that  he  has  bought,  but  to  go  for  a  ride  or  walk,  or 
upon  a  social  expedition,  is  this  interstate  commerce?  In 
Gibbons  v.  Ogden 3  Chief  Justice  Marshall  said :  ' '  Commerce 
undoubtedly,  is  traffic,  but  it  is  something  more:  it  is  inter- 
course." In  the  following  sentence  he  says:  "It  [com- 
merce] describes  the  commercial  intercourse  between  nation 
and  parts  of  nations,  in  all  its  branches."  Whether,  hav- 
ing defined  commerce  broadly  as  intercourse,  he  then  meant 
to  limit  it  to  business  intercourse  is  not  entirely  clear.  In 
Covington  Bridge  Company  v.  Kentucky*  what  the  court 
decided  was  that  an  interstate  bridge  is  a  vehicle  of  inter- 
state commerce,  but  the  court  said  by  way  of  dictum: 

"Commerce  was  defined  in  Gibbons  v.  Ogden,  9  Wheat. 
1,189,  to  be  'intercourse,'  and  the  thousands  of  people 
who  daily  pass  and  repass  over  this  bridge  may  be  as 
truly  said  to  be  engaged  in  commerce  as  if  they  were 
shipping  cargoes  of  merchandise  from  New  York  to 
Liverpool."5 

In  Hendrick  v.  Maryland6  it  appeared  that  the  defendant 
was  fined  for  not  having  complied  with  the  Maryland  law 
requiring  nonresidents  to  obtain  licenses  to  drive  motors 
within  the  State.  It  does  not  appear  whether  he  had  gone 
into  the  State  on  a  pleasure  trip  or  for  business.  The  court 
seemed  to  assume  that  he  was  engaged  in  interstate  com- 
merce, saying: 

1  The  Pipe  Line  Cases  (1914)  234  U.  S.  548,  562  (the  concurring  opin- 
ion of  the  Chief  Justice). 

3  United  States  v.  Hill  (1919)  248  U.  S.  420. 

3  (1824)  9  Wheaton  I,  190. 

4  (1894)  154  U.  S.  204.  *Ibid.,  218. 
6  (1915)  235  U.  S.  610. 

14 


2io       THE  AMERICAN  CONSTITUTION      §  86 

"In  the  absence  of  national  legislation  covering  the 
subject  a  State  may  rightfully  prescribe  uniform  regu- 
lations necessary  for  public  safety  and  order  in  respect 
to  the  operation  upon  its  highways  of  all  motor  vehicles — 
those  moving  in  interstate  commerce  as  well  as  others."1 

It  seems  fair  to  assume  that  the  policy  of  giving  to  the  term 
"commerce"  a  liberal  interpretation  will  be  continued,  and 
that  it  will  be  held  to  include  all  interstate  intercourse. 

The  sale  of  goods  in  one  State  to  be  shipped  into  another 
is  interstate  commerce  though  the  sale  is  made  through  an 
agent  in  the  State  of  the  purchaser.2  In  Pensacola  Tele- 
graph  Company  v.  Western  Union  Telegraph  Company3  it 
was  held  that  a  company  doing  an  interstate  telegraph 
business,  being  an  indispensable  means  of  inter-communi- 
cation, especially  in  commercial  transactions,  is  engaged  in 
interstate  commerce  within  the  meaning  of  the  Constitution ; 
and  in  International  Textbook  Company  v.  Pigg*  the  court 
declared  that  a  correspondence  school  which  has  its  head- 
quarters in  one  State,  with  patrons  in  other  States,  is 
engaged  in  interstate  commerce,  since  it  is  engaged  in  the 
business  of  sending  information  and  the  necessary  para- 
phernalia from  State  to  State  in  exchange  for  the  fees  of 
those  under  contract  with  it. 

But  it  is  not  interstate  commerce  for  a  company  located 
in  one  State  to  make  contracts  of  insurance  with  patrons 
located  in  other  States.  This  was  first  decided  in  1868  with 
regard  to  fire  insurance.  The  court  said  of  such  policies : 

"These  contracts  are  not  articles  of  commerce  in  any 
proper  meaning  of  the  word.  They  are  not  subjects 
of  trade  and  barter  offered  in  the  market  as  something 

1  Hendrick  v.  Maryland  (1915)  235  U.  S.,  622. 

'Bobbins  v.  Taxing  District  of  Shelby  Co.  (1887)  120  U.  S.  489; 
Caldwell  v.  North  Carolina  (1903)  187  U.  S.  622;  Norfolk  W.  R.  Co.  v. 
Sims  (1903)  191  U.  S.  441. 

3  (1877)  96  U.  S.  i.    See  also  Leloup  v.  Mobile  (1888)  127  U.  S.  640. 

4(1910)  217  U.  S.  91. 


§  87  INTERSTATE  COMMERCE  2 1 1 

having  an  existence  and  value  independent  of  the  parties 
to  them.  They  are  not  commodities  to  be  shipped  or 
forwarded  from  one  State  to  another,  and  then  put  up  for 
sale.  They  are  like  other  personal  contracts  between 
parties  which  are  completed  by  their  signature  and  the 
transfer  of  the  consideration.  Such  contracts  are  not 
interstate  transactions,  though  the  parties  may  be  domi- 
ciled in  different  States."1 

In  Hooper  v.  California2  it  was  urged  that  marine  insurance 
is  commerce  because  it  involves  contracts  of  insurance  upon 
goods  moving  in  commerce,  but  the  court  said : 

"The  business  of  insurance  is  not  commerce.  The 
contract  of  insurance  is  not  an  instrumentality  of  com- 
merce. The  making  of  such  a  contract  is  a  mere  incident 
of  commercial  intercourse,  and  in  this  respect  there  is  no 
difference  whatever  between  insurance  against  fire  and 
insurance  against  'the  perils  of  the  sea. '  "3 

The  business  of  life  insurance,  also,  has  been  held  not  to 
constitute  commerce.4  Similar  in  principle  are  the  cases 
which  have  held  that  the  taking  of  orders  for  the  purchase 
and  sale  of  cotton  and  grain  on  speculation  and  not  for 
delivery,5  and  the  making  of  contracts  for  advertising6  are 
not  commerce.  In  the  Lottery  Case, 7  however,  it  was  held 
that  "lottery  tickets  are  subjects  of  traffic  and  therefore 
are  subjects  of  commerce." 

§87.  The  Commencement  and  Termination  of  Interstate 
and  Foreign  Commerce.  Interstate  commerce  does  not 
include  the  production  or  manufacture  of  •  goods  even 
though  they  are  definitely  destined  for  transportation  to 

1  Paul  v.  Virginia  (1868)  8  Wallace  168,  183. 
3  (1895)  155  U.  S.  648. 

3  Ibid.,  655. 

4  New  York  Life  Itis.  Co.  v.  Cravens  (1900)  178  U.  S.  389. 
s  Ware  v.  Mobile  (1908)  209  U.  S.  405. 

6  Blumenstock  Bros.  Adv.  Agency  v.  Curtis  Pub.  Co.  (1920)  252  U.  S. 
436. 

7  (1903)  188  U.  S.  321. 


212       THE  AMERICAN  CONSTITUTION      §  87 

another  State  or  country.  If  this  were  not  so  the  whole 
industrial,  agricultural  and  mining  activities  of  the  United 
States  would  be  brought  under  the  control  of  the  federal 
government  by  force  of  the  commerce  clause.1  Nor  is  it 
sufficient  that  goods  have  been  moved  by  the  owner  to  the 
point  from  which  they  are  to  be  shipped,  as  long  as  trans- 
portation has  not  commenced,  and  as  long  as  the  goods  have 
not  been  actually  delivered  there  to  a  common  carrier  for 
carriage  to  another  State  or  country.2  But  when  goods 
are  actually  in  course  of  transportation  from  one  State  to 
another,  or  have  been  delivered  to  a  common  carrier  for  that 
purpose  they  have  then  entered  into  interstate  commerce. 3 
It  is  obvious  that  foreign  and  interstate  commerce  does 
not  terminate  at  state  lines.  As  said  by  Chief  Justice  Mar- 
shall "it  would  be  a  very  useless  power  if  it  could  not  pass 
those  lines."4  He  goes  on  to  say  of  interstate  commerce: 

"Can  a  trading  expedition  between  two  adjoining 
States  commence  and  terminate  outside  of  each?  .  .  . 
Commerce  among  the  States  must  of  necessity  be  com- 
merce with  the  States.  .  .  .  The  power  of  Congress, 
then,  whatever  it  may  be,  must  be  exercised  within  the 
territorial  jurisdiction  of  the  several  States." 

But,  as  Congress  may  not  legislate  as  to  purely  intrastate 
commerce,5  it  is  important  to  determine  when  interstate 
commerce  comes  to  an  end.  In  the  important  case  of 
Brown  v.  Maryland  Chief  Justice  Marshall  said : 

"Sale  is  the  object  of  importation,  and  is  an  essential 
ingredient  of  that  intercourse,  of  which  importation 
constitutes  a  part.  It  is  as  essential  an  ingredient,  as 

'  Kidd  v.  Pearson  (1888)  128  U.  S.  i;  United  States  v.  E.  C.  Knight 
Co.  (1895)  156 U.S.  i. 

a  Coe  v.  Errol  (1886)  116  U.  S.  517. 

» In  Kelley  v.  Rhoads  (1903)  188  U.  S.  I,  it  was  held  that  the  driving 
of  sheep  from  Utah  across  Wyoming  to  a  point  in  Nebraska  was  inter- 
state commerce. 

4  Gibbons  v.  Ogden  (1824)  9  Wheaton  i,  195. 

s  See  sec.  93, 


§  87  INTERSTATE  COMMERCE  213 

indispensable  to  the  existence  of  the  entire  thing,  then,  as 
importation  itself.  It  must  be  considered  as  a  component 
part  of  the  power  to  regulate  commerce."1 

But  the  Chief  Justice  also  made  the  suggestion,  "that 
when  the  importer  has  so  acted  upon  the  thing 
imported,  that  it  has  become  incorporated  and  mixed 
up  with  the  mass  of  property  in  the  country,  it  has, 
perhaps,  lost  its  distinctive  character  as  an  import," 
but  that  this  is  not  true  of  it  "while  remaining  the  property 
of  the  importer,  in  his  warehouse,  in  the  original  form  or 
package  in  which  it  was  imported."2  From  this  suggestion 

/  has  developed  the  so-called  "original  package"  doctrine — 
that  when  goods  imported  from  another  State  or  country 

(  are  still  in  the  hands  of  the  importer  unsold  and  in  their 
original  packages  they  are  still  a  part  of  interstate  com- 
merce. 3  But  if  the  goods  have  been  taken  from  the  original 
packages  in  which  they  were  imported,  though  for  the 
purpose  of  sale  by  the  importer,  the  interstate  or  foreign 
commerce  has  terminated . 4  In  an  attempt  to  retain  for  sales 
by  importers  the  character  of  interstate  commerce,  as  sales  of 
original  packages,  and  yet  to  allow  such  sales  to  be  in  quantity 
suitable  to  retail  business,  cigarettes  in  packages  of  ten  were 
shipped  in  open  baskets,5  and  even  loose.6  In  each  case, 
however,  the  Supreme  Court  held  that  the  shipments  were 
not  made  in  good  faith  in  the  sort  of  packages  in  which  such 
goods  were  usually  transported  in  interstate  commerce, 
and  that  the  sale  of  the  small  packages  of  cigarettes  was, 
therefore,  not  a  sale  in  the  original  packages,  and  so  not  part 
of  interstate  commerce. 

1  (1827)  12  Wheaton  419,  447.  That  sale  of  goods  transported  in 
interstate  commerce  is  part  of  such  commerce  was  decided  in  Leisy  v. 
Hardin  (1890)  135  U.  S.  100.  a  Ibid.,  441. 

'Bowman  v.  Chicago,  etc.,  Ry.  Co.  (1888)  125  U.  S.  465;  Leisy  v. 
Hardin  (1890)  135  U.  S.  100;  Askren  v.  Continental  Oil  Co.  (1920)  252 
U.  S.  444. 

*  May  &  Co.  v.  New  Orleans  (1900)  178  U.  S.  496. 

s  Austin  v.  Tennessee  (1900)  179  U.  S.  343. 

6  Cook  v.  Marshall  (1905)  196  U.  S.  261. 


214       THE  AMERICAN  CONSTITUTION      §  88 

It  seems  that  peddling  goods  imported,  even  when  they 
have  been  imported  by  the  peddler,  and  are  sold  by  him  in 
the  packages  in  which  imported,  is  not  a  part  of  interstate 
commerce.1  The  reason  seems  to  be  that  peddling  is 
viewed  as  so  distinctly  a  retail  transaction,  and  local  in  its 
character,  as  not  to  be  analogous  to  the  ordinary  sale  by  the 
importer,  usually  in  quantity,  of  imported  goods  in  their 
original  packages. 

§88.  Congressional  Power  Over  Foreign  Commerce.  Under 
the  commerce  clause  and  the  taxing  power  Congress  may 
lay  duties  upon  imports  from  foreign  countries,  only  re- 
stricted by  the  constitutional  provisions  that  such  duties 
shall  be  uniform  throughout  the  United  States,  and  that 
they  shall  not  give  preferences  to  the  ports  of  one  State  over 
those  of  another. 2  But,  further,  in  other  connections,  the 
Supreme  Court  has  frequently  asserted  that  the  power  of 
Congress  over  foreign  commerce  is  plenary  and  absolute. 
It  may  impose  general  embargoes,  or  exclude  special  kinds 
of  goods,  or  regulate  the  standard  of  goods  to  be  admitted. 3 
It  may  exclude  all  aliens  or  certain  classes  of  aliens. 4  Under 
this  power,  also,  Congress  may  exclude  foreign  vessels  from 
our  harbors  or  admit  them  upon  such  conditions  as  it  sees 
fit.5  In  the  case  just  cited  the  Court  upheld  a  federal 
statute  which  allows  a  seaman  on  a  foreign  vessel  to  sue  for 
and  recover  one  half  of  the  wages  which  he  shall  have 
earned,  notwithstanding  his  contract  of  employment  gives 
him  no  right  to  any  wages  until  the  termination  of  his 
voyage.  Up  to  the  present  time  no  regulation  of  foreign 
commerce  has  been  held  to  be  in  conflict  with  the  Fifth 
Amendment  because  lacking  in  due  process,  or  to  be  other- 
wise unconstitutional.  It  is  to  be  borne  in  mind  that  the 

1  Ernest  v.  Missouri  (1895)  156  U.  S.  296;  Wagner  v.  Covington  (1919) 
251  U.  S.  95. 

3  See  sec.  80. 

a  Butterfield  v.  Stranahan  (1904)  192  U.  S.  470,  492;  The  Abby 
Dodge~(i9i2)  223 "U.  S.  166;  Brolan  v.  United  States  (1915)  236  U.  S. 
216;  Weber  v.  Freed  (1915)  239  U.  S.  325. 

4  Oceanic  Navig.  Co. ».  Stranahan  (1909)  214  U.  S.  320,  342. 
s  Strathearn  S.  S.  Co.  v.  Dillon  (1920)  252  U.  S.  348. 


§  89  INTERSTATE  COMMERCE  215 

grant  of  power  over  foreign  commerce  is  supported  and 
supplemented  by  the  possession  by  the  central  government 
of  the  exclusive  control  of  foreign  relations.  It  is  also  to  be 
borne  in  mind  that  foreign  commerce  is  the  proper  subject 
of  treaties. x 

§89.  Congressional  Power  Over  Commerce  with  the  Indian 
Tribes.2  It  was  early  declared  that  under  its  power  to 
regulate  commerce  with  the  Indian  Tribes  Congress  may 
prohibit  all  intercourse  with  them  except  under  license. 
This  power  was  compared  with  the  power  to  declare  em- 
bargoes in  foreign  commerce.  It  is  not  lost  by  reason  of  the 
fact  that  the  territory  occupied  by  an  Indian  tribe  is  in- 
cluded within  the  area  of  a  State.3  By  the  Articles  of 
Confederation4  Congress  was  given  the  power  of 

"regulating  the  trade  and  managing  all  affairs  with 
the  Indians,  not  members  of  any  of  the  States,  provided 
that  the  legislative  right  of  any  State  within  its  own 
limit  be  not  infringed  or  violated." 

Such  a  provision,  as  new  States  were  admitted  into  the 
Union,  would  have  practically  nullified  Congressional  power, 
and  the  constitutional  provision  was  so  framed  as  to  escape 
this  difficulty.  The  same  doctrine,  which  was  laid  down  in 
the  case  last  cited,  was  repeated  by  the  Supreme  Court  in 
United  States  v.  Holliday,5  and  was  held  to  apply  not  only 
to  Indian  tribes  within  their  reservations,  but  to  members 
of  such  tribes  when  outside  of  their  reservations.  Whether 
any  group  of  Indians  constitutes  a  tribe  is  primarily  a 
question  for  the  decision  of  the  political  branch  of  the 
government.  A  State  may  not  by  any  action  of  its  own 

1  See  sec.  34. 

2  See  sec.  107,  with  regard  to  congressional  control  of  Indian  affairs 
generally. 

3  United  States  v.  Cisna  (1835,  Cir.  Ct.)  i  McLean  254.     It  was  held, 
however,  that  the  regulations  in  question  had  been  in  effect  repealed 
by  later  joint  action  of  the  United  States  and  the  State  with  regard 
to  the  tribe  in  question. 

«  Art.  ix. 

5  (1865)  3  Wallace  407. 


216       THE  AMERICAN  CONSTITUTION      §  90 

withdraw  Indians  from  this  power  of  Congress.  Somewhat 
later  the  Supreme  Court  held  that  the  power  of  Congress 
may  extend  to  territory  surrounding  Indian  reservations  for 
the  protection  of  the  Indian  tribes  involved.1  And  still 
later  it  was  held  that  regulation  of  traffic  in  liquor  may  be 
enacted  by  Congress  for  a  period  of  years  for  territory 
formerly  belonging  to  an  Indian  tribe,  but  later  partitioned 
in  severalty  to  individual  Indians  no  longer  retaining  their 
tribal  allegiance.2  The  decisions  in  these  last  two  cases 
are  affected  as  well  by  the  treaty  power  as  by  the  power 
exercised  under  the  commerce  clause. 3 

§90.  Protection  of  Interstate  Transportation  and  Traffic. 
It  was  not  until  the  latter  part  of  the  nineteenth  century 
that  Congress  began  to  legislate  for  the  purpose  of  directly 
regulating  interstate  commerce.  Since  that  time,  however, 
legislation  in  this  field  has  become  large  in  amount  and  very 
important  in  character.  In  1887  was  passed  the  Interstate 
Commerce  Act,4  which  required  that  rates  of  carriers 
engaged  in  interstate  and  foreign  commerce  be  reasonable, 
that  there  be  no  discrimination  in  rates  or  service,  that 
receipts  of  different  roads  be  not  pooled  and  divided,  and 
that  rates  be  published.  The  Interstate  Commerce  Com- 
mission was  created  for  the  purpose  of  enforcing  the  act. 
The  act  has  been  frequently  amended  in  order  to  make  its 
enforcement  more  effective;  in  order  to  give  to  the  com- 
mission the  power  to  fix  rates  and  regulations5;  in  order 
to  prevent  railroads  from  carrying  commodities  owned  by 
them  and  dealt  in  by  them  in  competition  with  their 
patrons ;  and  in  order  to  bring  within  the  purview  of  the  act 
express  companies,  sleeping  car  companies,  telegraph,  tele- 
phone and  cable  companies,  and  pipe  lines.  The  regulation 
of  the  act  of  transportation  of  interstate  commerce,  and  of 

J  United  States  v.  43  Gallons  of  Whiskey  (1876)  93  U.  S.  188. 

3  Dick  v.  United  States  (1908),  208  U.  S.  340. 

s  As  to  treaty  power  generally  see  sees.  33  and  34;  as  to  treaties 
with  the  Indians  see  sec.  107. 

4  Act  of  Feb.  4,  1887,  24  Stat.  379. 
s  See  sec.  60. 


§  90  INTERSTATE  COMMERCE  217 

the  agencies  engaged  in  such  transportation  would  seem  to 
fall  so  obviously  within  the  power  granted  to  Congress 
by  the  commerce  clause,  as  not  to  make  the  question  debat- 
able. As  a  matter  of  fact  the  right  of  Congress  to  regulate 
the  rates  and  practices  of  interstate  carriers  has  been 
accepted  without  argument.1  Such  attacks  as  have  been 
made  upon  regulations  in  this  field  have  been  based  upon  the 
contention  that  particular  legislation  infringed  other  con- 
stitutional limitations,2  or  that  it  was  not  in  fact  a  regu- 
lation of  interstate  commerce  but  of  commerce  which  was 
intrastate, 3  or  that  particular  orders  of  the  commission  were 
so  unreasonable  as  to  be  lacking  in  due  process.4 

In  1890  was  passed  the  Sherman  Anti-Trust  Act.5  This 
statute  makes  it  a  criminal  offense  to  enter  into  a  contract, 
combination,  or  conspiracy  in  restraint  of  trade  or  commerce 
among  the  States,  or  with  foreign  nations,  or  to  monopolize 
or  attempt  to  monopolize  or  conspire  to  monopolize  any 
part  of  such  trade.  This  statute  has  been  upheld  and 
applied  in  a  large  number  of  decisions  of  the  Supreme 
Court.6  The  cases  have  for  the  most  part  dealt  with  the 
interpretation  of  the  act, 7  or  with  the  determination  of  the 

1  Interstate  Comm.  Comm.  v.  Illinois  Cent.  R.  R.  Co.  (1910)  215 
U.  S.  452;  Interstate  Comm.  Comm.  v.  Chicago,  R.  I.  &  Pac.  Ry.  (1910) 
218  U.  S.  88. 

a  Armour  Packing  Co.  v.  United  States  (1908)  209  U.  S.  56  (Elkins 
Act  attacked  on  the  grounds  that  its  provisions  resulted  in  the  levy  of  an 
export  tax,  and  in  a  preference  to  the  ports  of  one  State  over  those  of 
another);  New  York  Cent.  &  H.  R.  R.  R.  v.  United  States  (1909)  212 
U.  S.  481  (Elkins  Act  attacked  as  contrary  to  the  due  process  clause  of 
the  Fifth  Amendment). 

3  See  the  discussion  just  below  in  sec.  93. 

«  See,  for  example,  discussion  in  Interstate  Comm.  Comm.  v .  Union 
Pac.  R.  R.  Co.  (1912)  222  U.  S.  541 ;  Interstate  Comm.  Comm.  v.  Louis^ 
ville&  N.  R.  R^Co.  (1913)  227  U.  S.  88. 

s  AcFoTJuIy"^!  #90726  Stat.  209. 

6  See  the  very  interesting  little  book  by  the  present  Chief  Justice, 
William  H.  Taft,  The  Anti-Trust  Act  and  the  Supreme  Court,  in  which  he 
traces  the  application  of  the  act  and  the  development  of  its  interpreta- 
tion. 

7  For  instance,  whether  the  act  forbids  all  combinations  which  fall 
within  the  letter  of  the  statute,  or  only  those  which  unreasonably  re- 


218       THE  AMERICAN  CONSTITUTION      §  90 

question,  when  does  a  contract  or  combination  restrain 
interstate  commerce  \^ 

In  United  States  v.  E.  C.  Knight  Company1  it  was  held  that 
the  acquisition  by  the  American  Sugar  Refining  Company 
of  certain  refineries  in  Pennsylvania  as  a  result  of  which  it 
controlled  the  output  of  ninety-eight  per  cent,  of  the  sugar 
in  the  United  States,  did  not  fall  within  the  prohibition  of 
the  act,  on  the  ground  that  the  transaction  had  only  to  do 
with  the  acquisition  of  property  within  a  State.  The  case  has 
never  been  overruled,  but  subsequent  cases  beginning  with 
Addyston  Pipe  &  Steel  Company  v.  United  States,2  and 
including  Northern  Securities  Company  v.  United  States3 
and  Swift  &  Company  v.  United  States*  have  gone  very  far 
to  restrict  its  authority. 

In  the  Addyston  case  there  was  a  combination  of  manu- 
facturers within  a  certain  area  for  the  purpose  of  fixing 
prices  and  pooling  profits  in  the  sale  of  iron  pipe.  These 
transactions  involved  interstate  sales  and  shipments.  The 
court  had  no  doubt  that  this  arrangement  fell  within  the 
terms  of  the  statute.  In  the  Northern  Securities  case  it 
appeared  that  a  corporation  was  organized  in  New  Jersey  to 
hold  the  majority  of  the  stock  in  three  railroads  doing  an 
interstate  business.  It  was  insisted  by  the  defendants  that 
this  was  simply  a  transaction  in  railroad  stock,  which  was 
not  interstate  commerce,  and  was  therefore  similar  to  the 
transaction  in  the  Knight  case.  The  court,  however,  held 
that  the  necessary  result  of  the  arrangement  was  to  prevent 
competition  and  to  tend  towards  a  monopoly  in  interstate 
transportation  in  the  area  affected.  In  the  Swift  case  the 
evidence  showed  that  the  meat  packers  involved  had 
entered  into  an  agreement  for  the  purpose  of  controlling 
the  prices  to  be  paid  for  cattle  at  certain  stockyards  to 
which  cattle  were  shipped  from  many  different  States. 

strain  interstate  or  foreign  commerce.  See  the  development  from  United 
States  v.  Trans-Missouri  Freight  Asso.  (1897)  166  U.  S.  290,  to  Standard 
Oil  Co.  v.  United  States  (1911)  221  U.  S.  I. 

1  (1895)  156  U.  S.  i.  *  (1899)  175  U.  S.  211. 

3  (1904)  193  U.  S.  197.  4  (1905)  196  U.  S.  375. 


§90  INTERSTATE  COMMERCE  219 

Although  the  sales  which  were  to  be  effected  were  in  indi- 
vidual States,  the  court  says  that  their 

"  effect  upon  commerce  among  the  States  is  not  accidental, 
secondary,  remote,  or  merely  probable.  It  is  a  direct 
object,  it  is  that  for  the  sake  of  which  the  several  specific 
acts  and  courses  of  conduct  are  done  and  adopted.  .  .  . 
Here  the  subject  matter  is  sales,  and  the  very  point  of  the 
combination  is  to  restrain  and  monopolize  commerce 
among  the  States  in  respect  of  such  sales."1 

The  case  is  distinguished  from  the  Knight  case  on  the 
ground  that  in  the  latter  it  was  not  shown  that  restraint  or 
monopoly  was  the  purpose  or  would  be  the  result  of  the 
transaction  in  question.  It  is  believed  that,  if  at  the 
present  time  such  a  case  as  that  against  the  Knight  Company 
were  properly  pleaded,  and  supported  by  such  evidence  of 
the  effect  upon  interstate  sales  of  the  acquisition  of  the 
property  which  was  involved,  as  could  undoubtedly  be 
produced,  it  would  be  held  to  fall  within  the  Sherman 
Act.2 

It  has  been  held  that  interstate  commerce  may  be  re- 
strained illegally  contrary  to  the  prohibition  of  the  Sherman 
Act  by  a  combination  of  the  employees  of  interstate  rail- 
roads for  the  purpose  of  striking  and  causing  an  interruption 
of  commerce  over  such  roads.3  Indeed  the  Supreme 
Court  has  held  that,  quite  aside  from  the  provisions  of  that 

'  Addyston  P.  &  S.  Co.  v.  United  States  (1905),  196  U.  S.,  397. 

2  In  1914  the  Federal  Trade  Commission  was  established  (Act  of 
Sept.  26,  1914,  38  Stat.  717),  and  by  the  act  of  its  creation  and  by  the 
Clayton  Act  (Act  of  Oct.  15,  1914,  38  Stat.  730)  the  commission  is  given 
certain  powers  over  interstate  commerce  which  are  in  their  character 
regulative,  advisory,  and  investigative.  These  acts  on  the  whole  may  be 
said  to  create  new  remedies  rather  than  new  obligations.    See  Harlan  & 
McCandless,  The  Federal  Trade  Commission.    And  see  Federal  Trade 
Comm.  v.  Gratz  (1920)  253  U.  S.  421,  on  the  limits  of  the  powers  of  the 
commission. 

3  United  States  v.  Elliott  (1894)  62  Fed.  801.    And  see   Loewe  v. 
Lawler  (1908)  208  U.  S.  274.     This  has  not  been  changed  by  the  pro- 
visions of  the  Clayton  Act.    Note  in  jo  Harv.  L.  Rev.  632. 


220       THE  AMERICAN  CONSTITUTION      §  90 

act,  the  federal  courts  have  the  power  to  restrain  such 
threatened  interruption  by  injunction. x 

The  danger  of  interruptions  to  interstate  commerce 
through  strikes  of  railroad  employees  is  serious  and  ever 
present.  No  means  of  fully  protecting  the  public  from 
this  danger  have  yet  been  devised  by  Congress.  Various 
expedients  have  been  tried,  however,  in  the  effort  to  mini- 
mize this  evil.  Provision  for  the  voluntary  submission  of 
labor  disputes  on  interstate  railroads  to  boards  of  concili- 
ation or  arbitration  has  been  tried,2  but  the  parties  would 
not  avail  themselves  of  them.  In  1920  provision  was  made 
for  the  compulsory  submission  of  such  disputes  to  a  perma- 
nent board  appointed  by  the  President,  composed  of  nine 
members — three  employees,  three  employers,  and  three 
representatives  of  the  public.  No  provision  is  made  for 
enforcing  the  awards  of  the  board,  the  provision  whish  was 
originally  in  the  bill  prohibiting  strikes  having  been 
dropped  before  its  enactment.  It  is  left  to  public  opinion 
to  compel  compliance  with  the  award  of  the  board,  made 
after  full  investigation. 

In  the  case  of  Adair  v.  United  States*  the  Supreme  Court 
had  presented  for  its  determination  the  constitutionality  of 
a  provision  in  the  act  of  1898,  which  made  it  a  misdemeanor 
for  any  interstate  railroad  carrier  to  threaten  any  employee 
with  loss  of  employment  or  to  unjustly  discriminate  against 
any  employee  because  of  his  membership  in  any  labor 
organization.  This  was  part  of  a  general  scheme  to  prevent 
strikes,  of  which  the  provision  for  arbitration,  spoken  of 
above,  formed  another  part.  The  majority  of  the  court 
held  the  provision  in  question  unconstitutional,  on  the 
ground  that  it  was 

"an  invasion  of  the  personal  liberty,  as  well  as  of  the  right 
of  property,  guaranteed  by  that  [the  fifth]  amendment. 
Such  liberty  and  right  embrace  the  right  to  make  con- 

*  In  re  Debs  (1895)  158  U.  S.  564. 

a  Act  of  June  i,  1898,  ch.  370,  30  Stat.  424;  act  of  July  5,  1915, 
ch.  6,  38  Stat.  103. 

*  (1908)  208  U.  S.  161. 


§  90  INTERSTATE  COMMERCE  221 

tracts  for  the  purchase  of  the  labor  of  others,  and  equally 
the  right  to  make  contracts  for  the  sale  of  one's  own 
labor."1 

It  was  urged  that,  though  there  might  be  here  some  curtail- 
ment of  liberty  and  the  right  to  acquire  property,  it  was  not 
without  due  process,  since  the  statute  was  passed  under  the 
power  to  regulate  commerce.  But  the  court  held  that  the 
provision  in  question  was  not  a  regulation  of  commerce, 
there  being 

"no  such  connection  between  interstate  commerce  and 
membership  in  a  labor  organization  as  to  authorize 
Congress  to  make  it  a  crime  against  the  United  States  for 
an  agent  of  an  interstate  carrier  to  discharge  an  employee 
because  of  such  membership  on  his  part."3 

One  justice  did  not  sit,  and  Justice  McKenna  and  Justice 
Holmes  dissented.  The  dissenting  justices  held  that  the 
section  in  question  was  a  reasonable  part  of  a  general  scheme 
to  prevent  strikes,  and  consequent  interruption  of  interstate 
commerce,  and  was,  therefore,  a  reasonable  regulation  of 
commerce.  Justice  Holmes  even  held  that  a  policy  on  the 
part  of  Congress  of  complete  unionization  of  interstate 
railroads  would  not  be  unconstitutional. 3 

In  1916  the  country  was  threatened  with  a  nation-wide 
railroad  strike,  and  in  order  to  avert  this  catastrophy 
Congress  passed  the  so-called  Adamson  Law. 4  It  provided 

1  Adair  v.  United  States  (1908)  208  U.  S.  172. 

a  Ibid.,  179.  This  suggestion  was,  however,  thrown  out  by  the  writer 
of  the  prevailing  opinion  (p.  175):  "And  it  may  be — but  upon  that 
point  we  express  no  opinion — that  in  the  case  of  a  labor  contract  be- 
tween an  employer  engaged  in  interstate  commerce  and  his  employee, 
Congress  could  make  it  a  crime  for  either  party  without  sufficient  or 
just  excuse  or  notice,  to  disregard  the  terms  of  such  contract  or  to  refuse 
to  perform  it. "  It  has  been  held,  however,  that  a  court  of  equity  has  no 
power  to  prevent  such  breaches  of  contract.  Arthur  v.  Oaks  (1894) 
63  Fed.  310;  Delaware  L.  &  A.  R.  R.  v.  Switchmen's  Union  (1907)  158 
Fed.  541,  543- 

s  Ibid.,  191. 

4  Act  of  Sept.  3,  5,  1916,  39  Stat.  721. 


222       THE  AMERICAN  CONSTITUTION      §  90 

that,  beginning  January  i,  1917,  "eight  hours  shall, 
in  contracts  for  labor  or  service,  be  deemed  a  day's 
work  for  the  purpose  of  reckoning  the  compensation  for 
service  of  all  employees  who  are  now  or  may  hereafter 
be  employed  by  any  common  carrier  by  railroad," 
who  are  engaged  in  interstate  commerce  with  certain  unim- 
portant exceptions.  It  then  directed  that  a  commission 
investigate  the  working  of  the  eight-hour  day  and  report  to 
the  President  and  Congress,  and  declared  that  pending  the 
report,  and  for  thirty  days  thereafter,  the  compensation  of 
employees  for  a  standard  eight-hour  day  should  not  be 
reduced  below  the  then  existing  standard  day's  wage,  and 
that  pro  rata  payment  should  be  made  for  overtime.  This 
legislation  was  attacked  as  being  entirely  outside  of  the 
power  possessed  by  Congress  over  interstate  commerce. 
In  the  case  of  Wilson  v.  New1  the  Supreme  Court  upheld  the 
statute,  though  the  court  was  divided  five  to  four.  None  of 
the  court  denied  the  right  of  Congress  to  regulate  the  hours 
of  work  on  interstate  railroads, 2  but  it  was  the  aspect  of  the 
law  as  a  regulation  of  wages  which  occasioned  the  division 
among  the  judges.3  The  majority  held  that  in  view  of 

"the  dispute  between  the  employers  and  employees  as 
to  a  standard  of  wages,  their  failure  to  agree,  the  resulting 
absence  of  such  standard,  the  entire  interruption  of  inter- 
state commerce  which  was  threatened,  and  the  infinite 
injury  to  the  public  interest  which  was  imminent,  it 
would  seem  inevitably  to  result  that  the  power  to  regulate 
necessarily  obtained  and  was  subject  to  be  applied  to  the 
extent  necessary  to  provide  a  remedy  for  the  situation, 
which  included  the  power  to  deal  with  the  dispute,  to 
provide  by  appropriate  action  for  a  standard  of  wages 
to  fill  the  want  of  one  caused  by  the  failure  to  exert 

'  (1917)  243  U.  S.  332. 

a  See  the  next  section. 

3  Justice  Day,  who  dissented,  did  so,  not  on  the  ground  that  Congress 
might  not  regulate  wages,  but  that  the  provisions  of  the  statute  for  the 
regulation  of  wages  first,  and  investigation  afterwards  was  so  arbitrary 
and  unreasonable  as  to  lack  due  process. 


§  90  INTERSTATE  COMMERCE  223 

the  private  right  on  the  subject,  and  to  give  effect  by 
appropriate  legislation  to  the  regulations  thus  adopted."1 

It  is  to  be  noticed  that  the  legislation  in  question  was  not 
supported  as  a  regulation  for  the  benefit  and  protection  of 
the  employees,  but  on  the  ground  that  it  was  justified  under 
the  power  of  Congress  to  regulate  and  protect  interstate 
commerce — that  anything  which  is  necessary  to  protect 
such  commerce  from  interruption  is  necessarily  a  con- 
stitutional regulation.  The  three  dissenting  justices  who 
held  that  Congress  had  no  power  to  regulate  wages,  declared 
that  the  fixing  of  wages  of  interstate  railroad  employees  is 
not  a  regulation  of  commerce,  but  of  the  internal  affairs  of 
commerce  carriers. 

There  are  interesting  suggestions  in  the  prevailing  opinion 
over  and  above  the  actual  points  decided.  The  Chief  Justice 
in  that  opinion  says  that  the  statute  under  consideration 
may  be  viewed 

"as  the  exertion  by  Congress  of  the  power  which  it  un- 
doubtedly possessed  to  provide  by  appropriate  legislation 
for  compulsory  arbitration  .  .  .  a  power  which  inevitably 
resulted  from  its  authority  to  protect  interstate  commerce 
in  dealing  with  a  situation  like  that  which  was  before  it."2 

He  also  says,  however, 

"that  as  the  right  to  fix  by  agreement  between  the  carrier 
and  its  employees  a  standard  of  wages  to  control  their 
relation  is  primarily  private,  the  establishment  and  giving 
effect  to  such  an  agreed-on  standard  is  not  subject  to  be 
controlled  or  prevented  by  public  authority."3 

,     It  seems,  then,  that  Congress  has  no  general  authority  to 
)  \  fix  wages  of  interstate  carriers,  but  that  in  case  of  a  dispute 
which  threatens  to  tie  up  interstate  railroads  it  may  compel 
arbitration  and  the  compliance  with  the  award  of  the  arbi- 
trators, or  may  itself  settle  such  dispute  by  fixing  wage 

« Wilson  v.  New  (1917),  243  U.  S.  332,  347. 
•Ibid.,  359-  *  Ibid.,  347. 


224       THE  AMERICAN  CONSTITUTION      §  90 

scales  or  the  standards  which  are  to  control  them.  It  is 
interesting  to  speculate  whether,  in  view  of  the  broad  power 
to  protect  interstate  commerce  from  interruption  through 
strikes,  and  in  view  of  the  changed  personnel  of  the  court,  a 
statute  such  as  that  which  was  before  the  court  in  the  Adair 
case  would  not  now  be  upheld. 

The  interest  of  the  national  government  in  interstate 
highways  does  not  arise  solely  from  its  authority  over 
interstate  commerce,  but  is  also  based  upon  its  power  to 
provide  for  postal  accommodations,  and  for  accommo- 
dations for  military  exigencies.  As  a  result  of  this  group  of 
powers  it  is  now  well  established  that  the  national  govern- 
ment may  itself  construct,  or  authorize  others  to  construct 
national  highways,  including  roads,  railroads  and  canals, 
as  well  as  bridges  from  State  to  State.  To  these  ends,  also, 
it  may  grant  charters  to  corporations.1  In  the  case  of 
Wilson  v.  Shaw2  it  was  contended  that  the  federal  govern- 
ment had  no  authority  to  provide  for  the  building  of  the 
Panama  Canal,  but  the  court  felt  no  doubt  of  the  existence 
of  that  authority. 

In  order  to  provide  for  the  accomplishment  of  one  of  the 
purposes  enumerated  above  Congress  may  exercise,  or 
confer  the  authority  to  exercise,  the  power  of  eminent 
domain. 3 

It  would  perhaps  be  competent  for  Congress  to  compel 
all  businesses  furnishing  facilities  for  the  carrying  on  of 
interstate  or  foreign  commerce  to  incorporate  under  the 
federal  government,  because  of  its  very  comprehensive 
authority  to  control  such  businesses.  It  would  seem,  how- 
ever, that  it  would  have  no  authority  to  compel  all  busi- 
nesses which  engage  in  interstate  commerce  to  so  incorpor- 
ate, and  to  thus  take  them  out  of  the  control  of  the  States, 
since  Congress  has  only  power  to  legislate  as  to  them  insofar 

1  See  generally  on  these  points  Pacific  Railroad  Removal  Cases  (1885) 
115  U.  S.  i ;  California  v.  Pacific  R.  R.  Co.  (1888)  127  U.  S.  I ;  Luxton  v. 
North  Riv.  B.  Co.  (1894)  153  U.  S.  525. 

8  (1907)  204  U.  8.24,33. 

3  Kohl  v.  United  States  (1875)  91  U.  S.  367;  Latinette  v.  St.  Louis 
(1912)  201  Fed.  676. 


§  9i  INTERSTATE  COMMERCE  225 

as  they  do  actually  engage  in  interstate  or  foreign  commerce. 
Whether  Congress  might  compel  all  individuals  and  cor- 
porations actually  engaging  in  such  commerce  to  take  out  a 
federal  license  is  another  question,  and  would  seem  to 
depend  upon  the  answer  to  the  further  question,  whether 
this  would  be  a  reasonable  means  of  exercising  that  control 
over  such  persons  and  corporation  which  is  legitimately 
within  the  power  of  Congress. 

§91.  Police  Regulations  under  the  Commerce  Power.  We 
consider  in  another  part  of  this  treatise  the  police  power 
of  the  States. J  This  power  is  perhaps  the  most  important, 
and  certainly  the  most  comprehensive  of  those  which  are 
reserved  to  the  States  by  the  Tenth  Amendment.  Under 
it  the  States  have  the  right  to  legislate  to  protect  the  safety, 
health,  morals,  public  order,  and  general  welfare  of  the  com- 
munity. The  federal  government  has  no  similar  general 
power,  operative  throughout  the  whole  country,  as  the 
power  of  each  State  is  operative  within  its  own  borders,  for 
the  federal  government  has  only  such  powers  as  are  granted 
to  it  by  the  Constitution,  and  no  such  power  is  given  by  that 
instrument.  Congress  has,  however,  asserted  the  right 
to  legislate  for  the  protection  of  the  community,  or  of  classes 
of  the  community,  within  the  fields  in  which  jurisdiction  is 
expressly  surrendered  to  it,  and  it  has  been  upheld  in  this 
exercise  of  authority  by  the  Supreme  Court.  The  result 
has  been  the  enactment  by  Congress  of  a  very  considerable 
body  of  what  is  essentially  police  regulation.  We  have 
already  seen  the  extent  to  which  Congress  has  been  held 
justified  in  going  in  the  use  of  the  power  of  taxation  for 
regulation. 3 

The  first  Federal  Safety  Appliance  Act  was  passed  by 
Congress  in  1893,  but  this  has  been  largely  amended  and 
supplemented  by  subsequent  legislation.3  These  acts  are 
declared  to  be  for  the  purpose  of  promoting  "the  safety  of 

'Chap.  32.  "Sec.  78. 

s  Act  of  March  2,  1893,  27  Stat.  531;  act  of  March  2,  1903,  32  Stat. 

943 ;  act  of  April  14,  1910,  36  Stat.  298 ;  act  of  May  30,  1908,  35  Stat.  476; 

act  of  Feb.  17,  1911,  36  Stat.  913;  act  of  March  4,  1915,  38  Stat.  1192. 

These  statutes  deal  with  such  subjects  as  brakes,  couplers,  grab  irons, 

15 


226       THE  AMERICAN  CONSTITUTION      §  91 

employees  and  travellers  upon  railroads  .  .  .  engaged  in 
interstate  commerce."  Their  purpose,  then,  is  primarily 
to  protect  certain  classes  of  persons  from  dangerous  appli- 
ances used  upon  interstate  roads,  and  not  to  regulate  inter- 
state traffic,  or  the  transportation  of  goods  or  persons  in\ 
interstate  commerce.  The  right  of  Congress,  however,  | 
to  legislate  for  this  purpose  has  not  been  questioned,  such 
litigation  as  there  has  been  having  arisen  over  the  inter- 
pretation of  the  act, x  or  because  it  was  thought  that  there 
was  an  unconstitutional  delegation  of  legislative  power, 2  or 
an  unconstitutional  interference  with  intrastate  commerce. 3 
In  1907  was  passed  an  act,  applying  to  all  railroads  en- 
gaged in  interstate  commerce,  or  commerce  within  the 
territories  or  the  District  of  Columbia,  prohibiting  employ- 
ees from  remaining  on  duty  for  more  than  sixteen  con- 
secutive hours,  and  requiring  that  when  an  employee  has 
been  on  duty  for  sixteen  consecutive  hours  he  shall  have  ten 
hours'  rest,  and  when  he  has  been  on  duty  sixteen  hours  in 
the  aggregate  he  shall  have  eight  hours'  rest.  Operators, 
train  despatchers,  and  those  engaged  in  the  transmission  of 
messages  in  connection  with  the  movement  of  trains  are 
restricted  to  nine  or  thirteen  hours'  service  according  to 
certain  named  circumstances.  Provision  is  made  for 
exceptions  in  cases  of  emergency.  The  act  is  entitled  ' '  An 
Act  to  promote  the  safety  of  employees  and  travellers  upon 
railroads  by  limiting  the  hours  of  service  of  employees 
thereon."4  The  act  has  been  interpreted  as  applying  only 

and  hand  holds,  drawbars,  ladders,  and  running  boards,  ash  pans  and 
boilers.  Penalties  are  imposed,  the  Interstate  Commerce  Commission 
is  given  authority  to  enforce  the  duties  imposed,  and  employees  are 
freed  from  the  assumption  of  risk. 

1  Johnson  v.  Southern  Pac.  Co.  (1904)  196  U.  S.  I. 

3  St.  Louis  I.  M.  &  S.  R.  R.  Co.  v.  Taylor  (1908)  210  U.  S.  281. 

3  Southern  Ry.  Co.  v.  United  States  (191 1)  222  U.  S.  20.    See  further, 
sec.  93. 

4  Act  of  March  4,  1907,  34  Stat.  1415.    The  Interstate  Commerce 
Commission  is  given  authority  to  enforce  the  act.    A  later  act  makes  it 
obligatory  upon  interstate  railroads  to  report  accidents  to  the  com- 
mission, and  gives  that  body  authority  to  investigate  and  publish  a 
report.   Act  of  May  6,  1910,  36  Stat.  350. 


§  91  INTERSTATE  COMMERCE  227 

to  employees  having  some  part  in  interstate  commerce,  or 
commerce  in  the  territories  or  in  the  District  of  Columbia, 
and  has  been  declared  to  be  constitutional.  The  court 
found  no  difficulty  in  discovering  a  close  relation  between 
long  hours  of  work  on  the  part  of  railroad  employees  and 
the  safety  of  such  employees  and  of  passengers,  and,  there- 
fore, held  that  the  statute  in  question  is  a  reasonable  regu- 
lation of  commerce. x 

The  first  Employers'  Liability  Act  passed  by  Congress  in 
I9o62  was  held  unconstitutional  because  it  applied  to  all 
employees  of  interstate  carriers  whether  engaged  in  inter- 
state or  intrastate  transportation  at  the  time  of  injury.3 
In  1908  another  Employers'  Liability  Act  was  passed  which 
made  every  railroad  engaged  in  commerce  in  the  territories 
or  the  District  of  Columbia  or  in  interstate  or  foreign 
commerce  liable  for  the  injury  or  death  of  any  employee 
himself  engaged  in  such  commerce, 

"resulting  in  whole  or  in  part  from  the  negligence  of  any 
of  the  officers,  agents,  or  employees  of  such  carrier,  or  by 
reason  of  any  defect  or  insufficiency,  due  to  its  negligence, 
in  its  cars,  engines,  appliances,  machinery,  track,  road- 
bed, works,  boats,  wharves,  or  other  equipment." 

It  is  provided  that  contributory  negligence  shall  not  be  a 
defense,  but  that  the  jury  shall  reduce  damages  in  pro- 
portion to  the  negligence  attributable  to  the  employee, 
except  that  an  employee  shall  not 

"be  held  to  have  been  guilty  of  contributory  negligence 
in  any  case  where  the  violation  by  such  common  carrier 
of  any  statute  enacted  for  the  safety  of  employees  con- 
tributed to  the  injury  or  death  of  such  employee." 

1  Baltimore  &  O.  R.  R.  Co.  v.  Interstate  Comm.  Comm.  (1911)  221 
U.  S.  612.  With  regard  to  state  regulation  of  hours  of  labor,  see  sec. 
274.  See  also  the  Adamson  Law  discussed  in  the  next  preceding 
section. 

a  Act  of  June  1 1, 1906, 34  Stat.  232. 

3  Employers'  Liability  Cases  (1908)  207  U.  S.  463.  See  further 
sec.  93. 


228       THE  AMERICAN  CONSTITUTION       §  91 

In  the  same  circumstances  as  those  stated  in  the  last 
exception  it  is  declared  that  the  employee  shall  not  be  taken 
to  have  assumed  the  risk  of  injury  occasioned  thereby.  And 
it  is  provided  that  the  carrier  cannot  relieve  itself  from 
liability  under  the  act  by  any  contract,  rule,  or  regulation. x 
This  act,  abrogating  the  fellow-servant  rule,  limiting  the 
doctrines  of  contributory  negligence  and  assumption  of 
risk,  allowing  actions  for  death,  and  preventing  the  parties 
from  contracting  to  vary  the  statutory  liability,  was 
attacked  in  the  Second  Employers'  Liability  Cases3  as  not 
being  a  legitimate  regulation  of  commerce,  and  as  being 
contrary  to  the  due  process  clause  of  the  Fifth  Amendment. 
The  reasoning  of  the  court  in  upholding  the  statute  is  to  the 
following  effect :  To  regulate  in  the  sense  in  which  that  term 
is  used  in  the  commerce  clause  "is  to  foster,  protect,  control, 
and  restrain,  with  appropriate  regard  for  the  welfare  of 
those  who  are  immediately  concerned  and  of  the  public  at 
large."  This  power  extends  to  every  agency  and  instru- 
ment of  interstate  transportation,  and  to  "all  who  are  in 
any  wise  engaged  in  such  transportation,  whether  as  com- 
mon carriers  or  as  their  employees."  The  duty  to  protect 
the  safety  of  employees  in  interstate  commerce,  and  lia- 
bility for  their  injury  bear  a  substantial  relation  to  inter- 
state commerce. 

''The  natural  tendency  of  the  changes  described  is  to 
impel  the  carriers  to  avoid  or  prevent  the  negligent  acts 
and  omission  which  are  made  the  bases  of  the  rights  of 
recovery  which  the  statute  creates  and  defines ;  and,  as 
whatever  makes  for  that  end  tends  to  promote  the  safety 
of  the  employees  and  to  advance  the  commerce  in  which 
they  are  engaged,  we  entertain  no  doubt  that  in  making 
those  changes  Congress  acted  within  the  limits  of  the 
discretion  confided  to  it  by  the  Constitution."3 

1  Act  of  April  22,  1908,  35  Stat.  65.    For  a  consideration  of  the  State 
Workmen's  Compensation  Acts,  see  sec.  274. 

•  (1912)  223  U.  S.  i. 

*  The  quotations  are  from  pages  47  and  50. 


§  9i  INTERSTATE  COMMERCE  229 

To  the  objection  that  carriers  might  be  liable  for  injuries 
occasioned  by  employees  not  engaged  in  interstate  com- 
merce, it  was  answered  that  such  injury  to  an  employee 
engaged  in  interstate  commerce  would  have  the  same  effect 
upon  that  commerce  as  would  an  injury  by  one  also  en- 
gaged in  it.  In  this  decision  the  court  was  unanimous. 

A  federal  statute  passed  in  1895  made  it  a  criminal 
offense  to  import  or  to  transport  in  interstate  commerce 
lottery  tickets.1  In  the  Lottery  Case2  the  Supreme  Court 
held,  as  we  have  already  seen,  that  lottery  tickets  may  be 
the  subject  of  commerce.3  In  that  case  it  was  also  con- 
tended that  the  statute  was  unconstitutional  because  it  was 
not  a  regulation  of  commerce  but  was  an  exercise  of  the  police 
power,  and  so  infringed  a  power  reserved  to  the  States  by 
the  Tenth  Amendment,  and  that  the  power  to  regulate  did 
not  include  a  power  to  prohibit.  Four  justices  who  dis- 
sented agreed  with  the  first  proposition.  But  the  answer 
of  the  majority  is  that,  if  lottery  tickets  are  subjects  of 
commerce,  and  when  subjects  of  interstate  commerce  are, 
therefore,  liable  to  regulation  by  Congress,  the  fact  that 
Congress  regulates  them  for  the  protection  of  the  inhabi- 
tants of  the  States  as  a  whole  does  not  show  that  Congress 
has  exceeded  its  authority.  In  fact  the  court  asserts  that 
considerations  which  will  justify  States  under  their  police 
power  in  limiting  property  rights  for  the  protection  of  the 
inhabitants  of  each  State,  will  justify  Congress  in  doing  the 
same  thing  when  the  property  involved  is  the  subject  of 
interstate  commerce.  To  the  contention  that  prohibition 
is  not  regulation,  the  court  answered  that  anything  which 
is  so  injurious  that  it  may  be  prohibited  by  the  States  under 
their  police  power,  may,  when  it  is  the  subject  of  interstate 
commerce,  be  prohibited  by  Congress. 

The  national  White  Slave  Act,4  which  under  heavy 
penalties  aims  to  prevent  the  transportation  of  women  and 

1  Act  of  March  2,  1895,  28  Stat.  963. 

'(1903)  i88U.  8.  321. 

«  Sec.  86. 

« Act  of  June  25,  1910,  36  Stat.  825. 


230       THE  AMERICAN  CONSTITUTION      §  91 

girls  in  interstate  commerce  for  immoral  purposes,  was 
attacked  on  the  same  grounds  as  those  insisted  upon  in  the 
Lottery  Case,  and  to  them  the  court,  this  time  unanimous, 
made  substantially  the  same  answers.  Two  quotations 
will  make  clear  the  court's  position1 : 

' '  There  is  unquestionably  a  control  in  the  States  over 
the  morals  of  their  citizens,  and,  it  may  be  admitted,  it 
extends  to  making  prostitution  a  crime.  It  is  a  control, 
however,  which  can  be  exercised  only  within  the  juris- 
diction of  the  States,  but  there  is  a  domain  which  the 
States  cannot  reach  and  over  which  Congress  alone  has 
power;  and  if  such  power  be  exerted  to  control  what  the 
States  cannot  it  is  an  argument  for — not  against — its 
legality.  Its  exertion  does  not  encroach  upon  the  juris- 
diction of  the  States." 

"The  principle  established  by  the  cases  is  a  simple  one 
when  rid  of  confusing  and  distracting  considerations, 
that  Congress  has  power  over  transportation  'among  the 
several  States' ;  that  the  power  is  complete  in  itself,  and 
that  Congress,  as  an  incident  to  it,  may  adopt  not  only 
means  necessary  but  convenient  to  its  exercise,  and  the 
means  may  have  the  quality  of  police  regulations."2 

In  the  Food  and  Drugs  Act  of  I9O63  we  have  an  example 
of  extensive  police  regulation  under  the  commerce  clause. 
Generally  speaking  it  prohibits  the  transportation  in  inter- 
state commerce  of  food  or  drugs  which  are  misbranded, 
adulterated,  deleterious,  or  in  a  condition  to  be  unfit  for  food, 
and  provides  for  the  confiscation  of  goods  carried  contrary 
to  the  act.  In  view  of  the  already  established  power  of 

'Hoke  v.  United  States  (1913)  227  U.  S.  308,  321,  323.  And  see 
Caminetti  v.  United  States  (1917)  242  U.  S.  470,  where  it  was  held  that 
the  operation  of  the  statute  was  not  confined  to  transportation  for  com- 
mercialized vice. 

3  See  also  the  act  of  Feb.  8, 1897,  29  Stat.  512,  prohibiting  the  carrying 
of  obscene  literature  and  articles  designed  for  indecent  and  immoral 
use  from  State  to  State,  considered  in  United  States  v.  Popper  (1899)  98 
Fed.  423. 

3  Act  of  June  30,  1906,  34  Stat.  768. 


§  9i  INTERSTATE  COMMERCE  231 

Congress  to  enact  police  regulations  under  the  commerce 
clause,  the  constitutionality  of  the  prohibitions  contained 
in  the  act  has  not  been  really  questioned.  In  fact  in  the 
first  case  under  the  act  their  constitutionality  was  expressly 
conceded,  and  only  the  methods  provided  for  their  enforce- 
ment were  attacked.1  In  a  later  case  under  the  act  the 
Supreme  Court  said: 

"That  Congress  has  ample  power  in  this  connection  is 
no  longer  open  to  question.  That  body  has  the  right 
not  only  to  pass  laws  which  shall  regulate  legitimate 
commerce  among  the  States  and  with  foreign  nations, 
but  has  full  power  to  keep  the  channels  of  such  commerce 
free  from  the  transportation  of  illicit  or  harmful  articles, 
to  make  such  as  are  injurious  to  the  public  health  outlaws 
of  such  commerce  and  to  bar  them  from  the  facilities  and 
privileges  thereof."2 

Similarly,  a  statute  designed  to  prevent  the  transportation 
in  interstate  commerce  of  animals  having  contagious 
diseases  is  constitutional. 3  The  Food  and  Drugs  Act  is  not, 
however,  aimed  only  at  the  protection  of  health,  but  in  its 
provisions  against  false  branding  it  aims  also  to  protect  from 
fraud  and  deception.4  In  United  States  v.  Ferger5  the 
Supreme  Court  upheld  the  authority  of  Congress  to  punish 
the  counterfeiting  and  use  of  fictitious  interstate  bills  of 
lading,  even  though  such  bills  relate  to  no  actual  or  con- 
templated commerce. 

In    view    of   the   foregoing    cases    some    surprise    was 
occasioned  by  the  decision  of  the  Supreme  Court  declaring 

'  Hipolite  Egg  Co.  v.  United  States  (1911)  220  U.  S.  45. 

2  McDermott  v.  Wisconsin  (1913)  228  U.  S.  115,  128.     In  United 
States  v.  420  Sacks  of  Flour  (1910)  180  Fed.  518,  it  was  contended  that 
the  statute  was  unconstitutional  because  a  police  regulation  and  so 
outside  the  power  of  Congress  to  enact,  but  the  court  quickly  disposed  of 
this  contention  on  the  authority  of  the  Lottery  Case. 

3  Act  of  May  29,  1884,  23  Stat.  31.    See  Reid  v.  Colorado  (1902)  187 
U.  S.  137- 

*  Weeks  v.  United  States  (1918)  245  U.  S.  618. 
«  (1919)  250  U.  S.  199. 


232        THE  AMERICAN  CONSTITUTION       §  91 

unconstitutional  the  first  federal  Child  Labor  Act,  which 
prohibited  the  transportation  in  interstate  commerce  of 
products  of  mines  in  which  children  under  sixteen  were 
employed,  and  the  products  of  any  manufacturing  establish- 
ments in  which  children  under  fourteen  were  employed,  or 
in  which  children  under  sixteen  were  allowed  to  work  more 
than  eight  hours  a  day,  or  before  six  in  the  morning  or  after 
seven  in  the  evening.1  The  court  divided  five  to  four. 
The  majority  held  that  this  was  not  a  regulation  of  inter- 
state commerce  but  an  attempt  to  regulate  mining  and 
manufacture  within  the  several  States  contrary  to  the  Tenth 
Amendment.  The  majority  opinion,  after  reviewing  the 
cases  discussed  just  above,  declared  that  "in  each  of  these 
instances  the  use  of  interstate  transportation  was  necessary 
to  the  accomplishment  of  harmful  results,"  while  under  the 
instant  statute  the  goods  shipped  were  harmless  in  them- 
selves, and  the  work  upon  them  was  finished.  The  opinion 
asserts  that  manufacture  within  the  States  is  subject  only 
to  the  police  power  of  the  States,  and  that  Congress  has  no 
authority  to  control  the  States  in  the  exercise  of  that  power. 
The  dissenting  opinion,  written  by  JusticeJJolmes,  accepts 
as  not  open  to  doubt  the  proposition  that  the  federal 
government  cannot  directly  control  mining  or  manufacture 
within  the  several  States,  -but-  asserts  that  it  may  affect  such 
industries  indirectly  under  its  express  powers.  Justice 
Holmes  points  out  what  has  been  done  under  the  commerce 
clause  and  sanctioned  by  the  court  with  regard  to  lotteries, 
food  and  drugs,  and  the  white  slave  traffic,  and  the  regu- 
latory legislation  which  has  been  upheld  under  the  taxing 
power.3  He  says: 

"The  act  does  not  meddle  with  anything  belonging  to 
the  States.  They  may  regulate  their  internal  affairs  and 
their  domestic  commerce  as  they  like.  But  when  they 
seek  to  send  their  products  across  state  lines  they  are  no 
longer  within  their  rights.  If  there  were  no  Constitution 

'Hammer  v.  Dagenhart  (1918)  247  U.  S.  251.     The  act  is  that  of 
Sept.  i,  1916,  39  Stat.  675.  a  See  sec.  78. 


§  9i  INTERSTATE  COMMERCE  233 

and  no  Congress  their  power  to  cross  such  lines  would 
depend  upon  their  neighbors.  Under  the  Constitution 
such  commerce  belongs  not  to  the  States  but  to  Congress 
to  regulate.  It  may  carry  out  its  views  of  public  policy 
whatever  indirect  effect  they  may  have  upon  the  activities 
of  the  States.  .  .  .  The  public  policy  of  the  United 
States  is  shaped  with  a  view  to  the  benefit  of  the  nation 
as  a  whole."1 

The  lottery  and  white  slave  acts  seemed  to  have  aimed  at 
the  protection  of  the  moral  welfare  of  the  States  towards 
which  the  trafnc  moved,  and  one  purpose  of  the  Food  and 
Drugs  Act  was  certainly  to  protect  the  health  of  such  States, 
but  the  latter  act -was  also  aimed  to  protect  persons  in  the 
State  of  destination  from  economic  injury  through  fraud  and 
deception,  and  it  would  seem  that  part  of  the  purpose  of  the 
Whit'e  Slave  Act  was  to  protect  women  and  girls  from 
beirjg  induced  to  leave  the  States,  in  which  transportation 
would  t/egin,  to  their  injury.  If  these  objects  are  legitimate 
in  the  regulation  of  commerce,  it  is  hard  to  see  why  com- 
merce in  what  Justice  Holmes  calls  ''the  product  of  ruined 
lives"  should  not  be  excluded,  bofch  for  the  protection  of 
children  in  the  States  of  shipment,  and  for  the  protection 
against  competition  by  child-made  goods  of  those  in  the 
States  of  destination  who  maintain  higher  standards  in  this 
regard.  There  may  also  be  an  element  of  protection  to  the 
children  in  the  States  of  destination,  since  in  the  absence 
of  such  legislation  pressure  might  be  brought  to  bear  upon 
state  legislatures  to  meet  the  lower  standards  of  competing 
States.  The  doctrine  having  been  enunciated  and  acted 
upon  by  the  court  that  police  regulation  may  be  enacted 
under  the  commerce  clause,  the  position  of  the  minority  with 
regard  to  the  Child  Labor  Act  would  seem  to  be  more  logical 
than  that  of  the  majority.  The  object  which  was  frustrated 
by  the  Supreme  Court  in  the  decision  just  discussed  has 
since  been  sought  to  be  effected  under  the  taxing  power. a 

1  Hammer  v.  Dagenhart  (1918)  247  U.  S.  251,  281. 
a  See  sec.  78. 


234       THE  AMERICAN  CONSTITUTION       §  92 

§92.  Divesting  Goods  of  Interstate  Character.  While  the 
Supreme  Court  recognized  in  Mugler  v.  Kansas1  that  the 
States  may  under  their  police  power  prohibit  the  manu- 
facture or  sale  of  intoxicants,  it  declared,  nevertheless, 
that  intoxicating  liquor  is  a  legitimate  subject  of  interstate 
commerce,  and  that  the  States  may  not,  therefore,  interfere 
with  the  introduction  from  another  State  of  such  goods, 
or  with  their  sale  in  the  original  packages,  since  this  would 
be  infringing  a  field  reserved  to  Congress  under  the  Con- 
stitution.2 In  1890  was  passed  the  Wilson  Act3  which 
subjected  to  the  operation  of  state  laws,  passed  under  the 
police  power,  all  intoxicating  liquors  introduced  into  the 
States,  as  if  produced  therein.  In  1913  was  passed  the  Webb- 
Kenyon  Law4  to  make  the  state  regulations  even  more 
effective.  The  law  prohibits  the  transportation  in  inter- 
state commerce  of  any  liquor  intended  to  be  received,  sold,  or 
used  in  violation  of  the  laws  of  the  State  to  which  it  is  sent. 
Both  acts  were  attacked  as  attempts  to  delegate  to  the 
States  the  regulation  of  interstate  commerce,  which  could 
not  be  constitutionally  done.  It  was  held  that  this  was  not 
the  effect  of  the  legislation.  Congress  was  dealing  here 
with  a  commodity  whose  transportation  it  might  prohibit, 
and  which  on  the  other  hand  the  States  could  not  prevent 
being  brought  within  their  borders.  Instead  of  prohibiting 
its  transportation  in  interstate  commerce,  Congress  finally 
took  from  it  entirely  the  protection  of  the  commerce  clause, 
and  left  it  to  be  wholly  dealt  with  by  the  States.  The  court 
declared  that  if  Congress  could  entirely  prohibit  the  trans- 
portation of  such  goods  it  could  adopt  any  restriction  upon 
transportation  short  of  complete  prohibition. s 

1  (1887)  123  U.  S.  623.  It  has  since  been  held  that  a  State  may  con- 
stitutionally prohibit  the  possession  of  whiskey  for  personal  use,  and 
make  such  possession  criminal.  Crane  v.  Campbell  (1918)  245  U.  S.  304. 

aBowman  v.  Chicago,  etc.,  Ry.  (1888)  125  U.  S.  465;  Leisy  v.  Hardin 
(1890)  135  U.  S.  100.  *  Act  of  Aug.  8,  1890,  26  Stat.  313. 

4  Act  of  March  i,  1913,  37  Stat.  699. 

s  As  to  the  Wilson  Act  see  In  re  Rahrer  (1891)  140  U.  S.  545.  As  to  the 
Webb-Kenyon  Law  see  Clark  Distilling  Co.  v.  Western  Md.  Ry.  Co. 
(1917)  242  U.  S.  311. 


§  93  INTERSTATE  COMMERCE  235 

§93.  Incidental  Regulation  of  Interstate  Commerce.  Chief 
Justice  Marshall  in  his  far-reaching  decision  in  Gibbons  v. 
Ogden,*  which  established  the  right  of  Congress  to  legislate 
affirmatively  for  the  regulation  of  commerce,  laid  it  down  as 
fundamental  that  the  regulation  of  "the  completely  internal 
commerce  of  a  State  .  .  .  may  be  considered  as  reserved 
for  the  State  itself."2  This  has  been  repeated  time  after 
time  by  the  Supreme  Court  in  later  decisions;  it  has  been 
declared  that  while  the  Constitution  gives  to  Congress  the 
power  to  regulate  commerce  among  the  States  and  with 
foreign  nations,  the  Tenth  Amendment  reserves  to  the 
States  the  complete  control  of  that  commerce  which  is  not 
interstate  or  international. 

"The  internal  commerce  of  a  State — that  is,  the  com- 
merce which  is  wholly  confined  within  its  limits — is  as/ 
much  under  its  control  as  foreign  and  interstate  commerce 
is  under  the  control  of  the  federal  government."3  \ 

Over  that  commerce  "the  States  have  plenary  power,  and 
Congress  has  no  right  to  interfere."4 

In  the  Minnesota  Rate  Case5  the  contention  was  put 
forward  that  certain  state  rates  for  intrastate  shipments 
resulted  in  undue  discrimination  against  localities  to  which 
interstate  shipments  were  made  under  interstate  rates.  The 
court  held  that  since  there  had  been  no  determination  of  this 
question  of  undue  discrimination  by  the  Interstate  Com- 
merce Commission,  which  had  been  brought  to  the  court  for 
review,  the  question  was  not  properly  before  it,  but  it 
certainly  seemed  to  be  of  the  opinion  that  the  Interstate 
Commerce  Commission  could  order  intrastate  rates  to  be 

1  (1824)  9  Wheaton  i. 

2  Ibid.,  194. 

3  Sands  v.  Manistee  (1887)  123  U.  S.  288,  295. 

'Covington  &  C.  Bridge  Co.  v.  Kentucky  (1893)  154  U.  S.  204,  209. 

See  also,  among  many  that  might  be  cited,  County  of  Mobile  v. 
Kimball  (1880)  102  U.  S.  691,  699;  Wabash,  St.  L.  &  P.  R.  R.  v.  Illi- 
nois (1886)  118  U.  S.  557,  565;  Hammer  v.  Dagenhait  (1918)  247  U.S. 
251.  274. 

5  (1913)  230  U.  S.  352. 


236       THE  AMERICAN  CONSTITUTION      §  93 

changed,  which,  because  of  their  divergence  from  interstate 
rates,  put  certain  localities  under  an  undue  disadvantage.1 
In  the  Shrevepott  Case3  in  the  next  year  Justice  Hughes,  who 
had  written  the  opinion  in  the  Minnesota  Rate  Case,  directly 
applied  the  doctrine  which  had  been  foreshadowed  in  the 
earlier  decision.  The  Interstate  Commerce  Commission 
found  that  there  was  an  unreasonable  difference  between 
charges  made  for  certain  interstate  and  intrastate  hauls 
over  the  same  railroad,  to  the  disadvantage  of  localities 
engaged  in  interstate  shipments,  and  ordered  interstate 
rates  to  be  reduced  to  a  named  maximum,  and  that  compet- 
ing interstate  and  intrastate  traffic  be  carried  at  the  same 
rate  per  mile.  It  was  held  by  the  Commerce  Court  that  this 
order  relieved  the  railroad  of  the  duty  to  comply  with  orders 
of  the  state  commission,  which  required  it  to  carry  certain 
classes  of  goods  in  intrastate  shipments  at  a  rate  lower  than 
that  permitted  under  the  order  of  the  federal  commission. 
The  Supreme  Court  affirmed  the  decree  of  the  Commerce 
Court.  In  reaching  this  conclusion  the  court  said  : 

"The  fact  that  carriers  are  instruments  of  intrastale 


(Derogate  from  thecomplete.nd-&aramount  authorjtmf 
Congress  "over  the  latter  or  preclude  the  federal  power 
from  being  exerted  to  prevent  the  intrastate  operations 
of  such  carriers  from  being  made  a  means  of  injury  to  that 
which  has  been  confided  to  federal  care.  .  .  .  This  is 
not  to  say  that  Congress  possesses  the  authority  to 
regulate  the  internal  commerce  of  a  State,  as  such,  but 
that  it  does  possess  the  power  to  foster  and  protect  inter- 
state commerce,  and  to  take  all  measures  necessary  or 
appropriate  to  that  end,  although  intrastate  transactions 
of  interstate  carriers  may  thereby  be  controlled.  /This 
principle  is  applicable  here.  We  find  no  reason  to  doubt 
that  Congress  is  entitled  to  keep  the  highways  of  inter- 
state communication  open  to  interstate  traffic  upon  fair 

1  Minnesota  State  Cases  (1913)  230  U.  S.  352,  412  el  seq. 

3  Houston,  E.  &  W.  T.  Ry.  Co.  v.  United  States  (1914)  234  U.  S.  342. 


§  93  INTERSTATE  COMMERCE  237 

and  equal  terms.  ...  It  is  immaterial,  so  far  as  the 
protecting  power  of  Congress  is  concerned,  that  the  dis- 
crimination arises  from  intrastate  rates  as  compared  with 
interstate  rates.  ...  It  is  for  Congress  to  supply  the 
needed  correction  where  the  relation  between  intrastate 
and  interstate  rates  presents  the  evil  to  be  corrected,  and 
this  it  may  do  completely  by  reason  of  its  control  over 
the  interstate  carrier  in  all  matters  having  such  a  close 
and  substantial  relation  to  interstate  commerce  that  it  is 
necessary  or  appropriate  to  exercise  the  control  for  the 
effective. government  of  that  commerce."1 

Here  then  we  find  an  inroad  made  upon  the  rule  that  Con- 
gress cannot  regulate  intrastate  commerce,  to  the  effect 
that  it  may  do  so  when  that  appears  reasonably  necessary 
to  prevent  persons  or  localities  engaged  in  interstate 
commerce  from  being  unduly  discriminated  against  in  favor 
of  those  engaged  in  intrastate  commerce.  This  same 
doctrine  was  applied  to  express  rates  in  American  Express 
Company  v.  CaldwelL 2  In  the  next  year,  however,  an  order 
of  the  federal  commission  was  held  not  to  abrogate  state 
rates  because  it  was  not  clear  from  its  terms  what  practices 
were  discriminatory  towards  interstate  commerce  and  were 
therefore  to  be  corrected.  The  court  said  that  an  order 
of  the  commission  "  should  not  be  given  precedence  over 
a  state  rate  statute  otherwise  valid  unless,  and  except  so  far 
as,  it  conforms  to  a  high  standard  of  certainty."3 

The  Transportation  Act, 4  passed  at  the  termination  of  the 
World  War,  when  the  federal  control  of  railroads  was 
brought  to  an  end,  added  to  the  Interstate  Commerce  Act 
a  new  section,  I5a,  directing  the  commission,  in  the  exercise 
of  its  power  to  prescribe  reasonable  rates,  to  fix  them  so  that 
carriers  as  a  whole  shall  earn  an  aggregate  annual  income 
equal  to  a  fair  return  upon  the  aggregate  value  of  their 

'  Houston,  E.  &  W.  T.  Ry.  Co.  v.  United  States  (1914)  234  U.  S. 
342,351,353,354,355- 
«(i9i7)244lJ.  8.617. 

s  Illinois  Cent.  R.  R.  Co.  v.  Public  Util.  Com.  (1918)  235  U.  S.  493, 510. 
<  Act  of  Feb.  28,  1920,  41  Stat.  456. 


238       THE  AMERICAN  CONSTITUTION      §  93 

property  used  in  transportation.  It  also  added  to  section 
13  of  the  Commerce  Act  by  providing  that,  when  in  an 
investigation  any  rates  or  regulations  authorized  by  any 
State  are  brought  in  question,  the  State  shall  be  notified, 
and  that  a  joint  hearing  by  the  federal  commission  and 
state  authorities  may  be  had.  It  then  proceeds : 

' '  Whenever  in  any  such  investigation  the  Commission, 
after  full  hearing,  finds  that  any  such  rate,  fare,  charge, 
classification,  regulation,  or  practice  causes  any  undue 
or  unreasonable  advantage,  preference,  or  prejudice  as 
between  persons  or  localities  in  intrastate  commerce  on 
the  one  hand  and  interstate  or  foreign  commerce  on  the 
other  hand,  or  any  undue,  unreasonable,  or  unjust  dis- 
crimination against  interstate  or  foreign  commerce,  which 
is  hereby  forbidden  and  declared  to  be  unlawful,  it  shall 
prescribe  the  rate,  fare,  or  charge,  or  the  maximum  or 
minimum,  or  maximum  and  minimum,  thereafter  to  be 
charged,  and  the  classification,  regulation,  or  practice 
thereafter  to  be  observed,  in  such  manner  as,  in  its  judg- 
ment, will  remove  such  advantage,  preference,  prejudice, 
or  discrimination.  Such  rates,  fares,  charges,  classifica- 
tions, regulations,  and  practices  shall  be  observed  while  in 
effect  by  the  carriers  parties  to  such  proceeding  affected 
thereby,  the  law  of  any  State  or  the  decision  or  order  of 
any  state  authority  to  the  contrary  notwithstanding." 

To  put  this  act  into  effect  an  order  was  made  by  the  federal 
commission  making  very  substantial  increases  in  both 
passenger  and  freight  rates.  Railroads  in  New  York  sought 
to  increase  their  intrastate  as  well  as  their  interstate  rates 
in  accordance  with  this  order.  The  state  commission  re- 
fused to  allow  them  to  do  so  with  regard  to  passenger  rates 
without  their  showing  that  the  New  York  statutory  rates 
were  unreasonably  low.  The  Interstate  Commerce  Com- 
mission thereafter  upon  investigation  decided  that  the  intra- 
state rates  were  unduly  preferential,  and  ordered  them  to  be 
increased  to  conform  to  those  set  for  interstate  commerce. 
The  state  commission  was  then  enjoined  by  the  Federal 


§  93  INTERSTATE  COMMERCE  239 

District  Court  from  interfering  with  the  execution  of  this 
order. '  The  case  has  been  appealed  to  the  Supreme  Court. 

There  would,  in  the  first  place,  seem  to  be  serious  doubt 
as  to  whether  Congress  had  any  intention  to  do  more  than 
incorporate  into  the  Commerce  Act,  by  its  amendment  to 
section  13,  the  law  of  the  Shreveport  Case,  discussed  just 
above,  or  whether  it  had  any  intention  by  the  new  section, 
I5a,  to  do  more  than  authorize  the  federal  commission 
to  fix  interstate  rates  so  that  they  would  bear  their 
share  of  the  aggregate  return  on  the  aggregate  capital.  It 
would  seem  that  authority  to  fix  all  intrastate  rates,  thus 
ousting  state  authorities  from  this  important  field  of  regu- 
lation, should  not  be  held  to  be  given  to  the  Interstate 
Commerce  Commission  except  by  congressional  enactment 
which  is  explicit  and  unequivocal,  and  that  the  federal 
commission  in  making  the  order  under  consideration  acted 
under  no  such  explicit  grant. 2 

The  more  fundamental  question,  however,  is  as  to 
whether  Congress  may,  directly  or  through  the  instrumen- 
tality of  the  Interstate  Commerce  Commission,  regulate  all 
intrastate  railroad  rates  of  interstate  carriers.  Un- 
doubtedly the  recognition  and  exercise  of  such  a  power 
would  be  convenient  both  for  the  federal  commission  and  for 
the  railroads,  since  it  would  do  away  with  the  necessity  of 
separating  cost,  capital  and  earnings  of  interstate  and 
intrastate  carriage.  But  this  clearly  is  not  a  sufficient 
reason  for  assumption  by  Congress  of  power  over  commerce 
wholly  intrastate.  The  Supreme  Court  has  repeatedly  held 
in  rate  cases  that  interstate  and  intrastate  business  are 
separable,3  and  has  held  that  for  the  purpose  of  taxation 
gross  receipts  from  the  two  can  be  separated.4  In  the 
Shreveport  Case  it  was  held  that  under  its  power  to  protect 

1  Lehigh  Val.  R.  Co.  v.  Public  Serv.  Com.  (1921)  272  Fed.  758. 

2  See  the  very  careful  note  on  this  question  in  6  Cornell  L.  Quar.  412. 

3  Smyth  v.  Ames  (1898)  169  U.  S.  466;  Missouri  Rate  Case  (1913)  230 
U.  S.  474;  Allen  v.  St.  Louis  I.  M.  &  S.  Ry.  (1913)  230  U.  S.  553;  Wood  v. 
Vandalia  R.  R.  (1913)  231  U.  S.  i. 

*  Lehigh  Valley  R.  R.  v.  Pennsylvania  (1892)  145  U.  S.  192;  United 
States  Exp.  Co.  v.  Minnesota  (1912)  223  U.  S.  335. 


240       THE  AMERICAN  CONSTITUTION       §  93 

interstate  commerce  the  federal  government  through  the 
Interstate  Commerce  Commission  may  abrogate  intrastate 
rates,  when  the  shipments  under  them  are  competitive  with 
interstate  shipments,  to  the  disadvantage  of  the  latter. 
But,  of  course,  there  is  in  many  railroad  systems  a  large 
volume  of  intrastate  carriage  which  bears  no  competitive 
relation  to  the  carriage  of  goods  or  persons  in  interstate 
commerce,  and  which,  therefore,  cannot  be  regulated  by  the 
federal  government  on  that  ground.  This  was  the  case 
with  a  very  considerable  part  of  the  New  York  rates  affected 
by  the  ruling  of  the  Interstate  Commerce  Commission  under 
the  Transportation  Act  spoken  of  above,  but  the  right  of  the 
commission  to  fix  all  intrastate  rates  was  upheld  by  the 
District  Court  on  the  ground  that  the  lower  scale  of  state 
rates  would  put  an  undue  burden  on  interstate  commerce 
as  a  whole,  by  compelling  it  to  meet  the  deficit  in  the 
aggregate  fair  return  on  the  aggregate  capital  occasioned 
by  the  lower  state  rates.  But  this  result  does  not  seem 
necessarily  to  follow.  If  we  grant  that  the  state  rates  in 
any  case  are  unreasonably  low  because  lower  than  the  fed- 
eral rates,  that  does  not  require  the  federal  government  to 
make  its  rates  high  enough  to  make  up  the  deficit — it  is 
bound  only  to  allow  a  fair  return  on  the  capital  used  in 
doing  interstate  business,  while  the  constitutionality  of  the 
state  rates  is  determined  by  their  relation  to  the  capital 
used  in  doing  the  intrastate  business.  If  the  intrastate 
rates  are  so  low  as  not  to  allow  a  fair  return  on  that  capital 
their  enforcement  may  be  enjoined  and  reasonably  remuner- 
ative rates  substituted  for  them.  This  remedy  would  seem 
to  be  adequate  for  the  protection  of  interstate  railroads  in 
the  matter  of  intrastate  rates,  though  not  so  convenient  as 
would  be  the  settlement  of  the  whole  matter  of  rates,  inter- 
state and  intrastate,  by  one  tribunal.  The  Constitutional 
Convention  refused  to  incorporate  in  the  fundamental  law  a 
grant  to  Congress  of  the  sole  and  exclusive  power  over 
commerce, x  but  instead  provided  for  the  exercise  by  it  only 

1  See  the  suggestions  which  were  before  the  Committee  of  Detail, 
Farrand,  The  Records  of  the  Federal  Convention,  vol.  ii,  pp.  135,  143. 


§  93  INTERSTATE  COMMERCE  241 

of  the  power  to  regulate  commerce  among  the  States  and 
with  foreign  nations.  Then  the  Tenth  Amendment  de- 
clared that  the  powers  not  granted  had  been  reserved  to 
the  States  or  to  the  people.  The  result  has  been  that 
through  a  long  series  of  cases  it  has  been  held,  with  the 
exception  established  in  the  Shreveport  Case,  that  intrastate 
commerce  is  under  the  sole  control  of  the  States.  If  the  re- 
cent ruling  of  the  Interstate  Commerce  Commission  is  upheld 
it  will  constitute  a  most  striking  example  of  the  absorption 
of  important  state  police  powers  by  the  federal  government, 
and  will  mark  a  step  in  the  decline  of  state  sovereignty.  * 

Another  example  of  incidental  control  by  Congress  of 
intrastate  commerce,  as  a  result  of  its  plenary  power  over 
interstate  commerce,  is  found  in  the  Safety  Appliance  Acts.3 
These  acts  by  their  terms  apply  to  all  cars  and  locomotives 
on  any  railroad  engaged  in  interstate  commerce,  whether  at 
the  time  the  particular  cars  or  locomotives  are  being  so  used 
or  not.  The  Supreme  Court  upheld  the  legislation,  saying 
that  it  was  constitutional, 

"not  because  Congress  possesses  any  power  to  regulate 
intrastate  commerce  as  such,  but  because  its  power  to 
regulate  interstate  commerce  is  plenary  and  competently 
may  be  exerted  to  secure  the  safety  of  the  persons  and 
property  transported  therein  and  of  those  who  are 
employed  in  such  transportation,  no  matter  what  may  be 
the  source  of  the  dangers  which  threaten  it.  That  is  to 
say,  it  is  no  objection  to  such  an  exertion  of  this  power 
that  the  dangers  intended  to  be  avoided  arise,  in  whole 
or  in  part,  out  of  matters  connected  with  intrastate 
commerce. ' ' 3 

The  first  Employers'  Liability  Act  passed  by  Congress 
was  held  unconstitutional  because  it  applied  to  employees 

1  See  the  note  in  6  Cornell  L. Quart.,  412,  already  referred  to,  for  a  dis- 
cussion of  the  constitutional  question  here  involved. 

a  Act  of  March  2,  1893,  27  Stat.  531;  act  of  March  2,  1903,  32  Stat. 
943;  act  of  April  14,  1910,  36  Stat.  298;  act  of  May  30,  1908.  35  Stat. 
476;  act  of  Feb.  17, 1911 ,36  Stat.  913;  act  of  March  4, 1915, 38Stat.  1192. 

J  Southern  Ry.  Co.  v.  United  States  (1911)  222  U.  S.  20,  27. 
16 


242        THE  AMERICAN  CONSTITUTION       §  94 

engaged  in  intrastate  as  well  as  to  those  engaged  in  inter- 
state commerce.1  Shortly  afterwards  a  second  act  was 
passed  with  the  purpose  of  meeting  this  difficulty,  which 
covered  liability  only  to  employees  engaged  in  interstate 
commerce.  It  was  objected,  however,  that  the  injury 
covered  by  the  act  might  be  occasioned  by  a  fellow  employee 
who  was  engaged  solely  in  intrastate  commerce.  The  court 
held  that  this  did  not  make  the  statute  unconstitutional, 
since  the  effect  upon  interstate  commerce  would  be  the  same 
whether  one  engaged  therein  were  injured  by  a  fellow 
employee  engaged  in  interstate  commerce  or  in  commerce 
which  was  wholly  intrastate. 2 

§94.  State  Police  Legislation  Affecting  Interstate  Com- 
merce.3 The  police  power — that  is,  the  power  to  legislate 
for  the  protection  of  the  safety,  health,  morals,  good  order, 
and  general  welfare  of  the  community — is  reserved  to  the 
States.4  On  the  other  hand,  to  Congress  is  confided  the 
power  "to  regulate  commerce  with  foreign  nations  and 
among  the  several  States."  The  question  is,  how  far  may 
police  regulation  which  affects  interstate  commerce  go  con- 
stitutionally ?  In  Gibbons  v.  Ogden,5  which  is  so  often  the 
starting  point  in  the  discussion  of  any  question  under  the 
commerce  clause,  the  pojnt  in  controversy  was  whether  the 
State  of  New  York  could  by  the  grant  of  an  exclusive 
privilege  of  navigation  to  Livingston  and  Fulton  of  the 
waters  within  the  State,  exclude  therefrom  those  engaged  in 
interstate  navigation  licensed  by  the  federal  government. 
It  was  contended  that  the  grant  to  the  national  government 
of  the  power  to  regulate  interstate  commerce  did  not  exclude 
the  States  from  the  exercise  of  a  concurrent  power  over  the 

1  Employers'  Liability  Cases  (1907)  207  U.  S.  463. 

3  Second  Employers'  Liability  Cases  (1912)  223  U.  S.  i.  See  also  sec. 
91. 

3  Although,  perhaps,  the  logical  place  for  the  full  treatment  of  this 
subject  would  be  in  connection  with  the  States'  police  power  (see  sec. 
269),  for  the  sake  of  completeness  in  the  treatment  of  interstate  com- 
merce it  seems  preferable  to  put  it  here. 

*  See  the  full  discussion  of  the  police  power  in  Chap.  32. 

s  (1824)  9  Wheaton  i. 


§  94  INTERSTATE  COMMERCE  243 

same  subject  within  their  own  borders.  The  decision  was 
that  Congress  having  legislated  in  a  field  in  which  power  was 
expressly  granted  to  it  by  the  Constitution,  its  legislation 
must  prevail  over  any  state  laws  in  conflict  with  it.  It  was 
not  expressly  decided  whether,  in  the  absence  of  conflicting 
federal  legislation,  the  States  might  legislate  within  the 
whole  field  of  interstate  commerce,  but  it  is  strongly  inti- 
mated that  the  power  of  the  States  to  affect  interstate  com- 
merce is  only  incidental  to  the  police  power  which  vests  in  it 
for  the  protection  of  its  citizens. 

During  the  years  which  immediately  followed  the  decision 
in  Gibbons  v.  Ogden  we  find  in  the  decisions  and  opinions 
rendered  by  the  Supreme  Court  some  support  for  the  doc- 
trine of  a  concurrent  authority  in  the  States  to  legislate  in 
the  field  of  interstate  commerce,  as  long  as  there  is  no  con- 
flicting federal  legislation,  though  we  find  also  the  enunci- 
ation of  the  view  that  the  States  can  legislate  only  in  such  a 
way  as  to  affect  interstate  commerce  when  their  legislation 
has  to  do  with  matters  which  are  strictly  local  in  character, 
and  are  in  the  nature  of  police  regulations.1  The  next 
case  which  really  helps  to  clear  up  the  confusion  in  this  field 
is  that  of  Cooky  v.  Port  Wardens. 2  The  question  in  the  case 
was  as  to  the  validity  of  legislation  of  the  State  of  Penn- 
sylvania with  regard  to  pilotage  in  the  port  of  Philadelphia. 
It  was  held  by  the  majority  of  the  Supreme  Court  that  in 
so  far  as  this  statute  applied  to  vessels  engaged  in  foreign  or 
interstate  commerce  it  was  a  regulation  of  such  commerce. 
The  question  then  was  whether  as  such  regulation  it  was 
valid.  The  court  points  out  that  the  power  over  interstate 
and  foreign  commerce  granted  by  the  Constitution  is  not 
declared  by  that  instrument  to  be  exclusive.  It  is  argued, 
then,  that  if  it  is  exclusive  it  must  be  because  the  subjects 
of  that  power  are  of  such  a  nature  as  to  require  exclusive 
legislation  by  Congress. 

1  Compare  the  opinions  in  Wilson  v.  Blackbird  Creek  Co.  (1829)  2 
Peters  245;  New  York  v.  Miln  (1837)  11  Peters  102;  The  License  Cases 
(1847)  5  Howard  504;  The  Passenger  Cases  (1849)  7  Howard  283. 

2  (1851)  12  Howard  299. 


244       THE  AMERICAN  CONSTITUTION      §  94 

"  Now  the  power  to  regulate  commerce  embraces  a  vast 
field,  containing  not  only  many,  but  exceedingly  various 
subjects,  quite  unlike  in  their  nature;  some  imperatively 
demanding  a  single  uniform  rule,  operating  equally  on  the 
commerce  of  the  United  States  in  every  port ;  and  some, 
like  the  subject  now  in  question,  as  imperatively  demand- 
ing that  diversity,  which  alone  can  meet  the  local  necessi- 
ties of  navigation.  Either  actually  to  affirm  or  deny  that 
the  nature  of  this  power  requires  exclusive  legislation  by 
Congress,  is  to  lose  sight  of  the  nature  of  the  subjects  of 
this  power,  and  to  assert  concerning  all  of  them,  what  is 
really  applicable  only  to  a  part.  Whatever  subjects  of 
this  power  are  in  their  nature  national,  or  admit  only  of 
one  uniform  system,  or  plan  of  regulation,  may  justly 
be  said  to  be  of  such  a  nature  as  to  require  exclusive 
legislation  by  Congress.  That  this  cannot  be  affirmed  of 
laws  for  the  regulation  of  pilots  is  plain."1 

The  court,  therefore,  held  that  the  state  regulation  of  pilot- 
age was  valid.  Justice  McLean  dissented  on  the  ground 
that  the  States  have  no  power  to  legislate  as  to  interstate  or 
foreign  commerce.  Justice  Daniel  concurred  in  the  judg- 
ment of  the  court,  but  upon  the  ground  that  the  state  law 
was  not  a  regulation  of  commerce,  although  it  might  inciden- 
tally affect  commerce,  but  was  in  fact  merely  an  exercise 
of  the  power  reserved  to  each  State  for  the  protection  of 
the  safety  of  its  citizens.  This  case  at  least  disposes  of 
the  contention  that  the  States  have  a  general  concurrent 
power  with  Congress  to  legislate  in  the  field  of  interstate  and 
foreign  commerce,  subject  only  to  the  limitation  that  in 
case  of  conflict  of  legislation  that  of  Congress  shall  prevail. 

The  doctrine  enunciated  in  the  majority  opinion  in  Cooley 
v.  Port  Wardens,  that  the  States  have  concurrent  authority 
over  interstate  commerce  in  cases  where  diversity  of  treat- 
ment to  meet  different  local  conditions  is  desirable,  has  been 
often  repeated. a  On  the  other  hand  in  a  large  number  of 

1  Cooley  v.  Port  Wardens  (1851)  12  Howard  299,  319. 

a  See,  for  instance,  Bowman  t.  Railroad  Co.  (1888)  125  U.  S.  465, 507; 
Covington,  etc.,  Bridge  Co.  v.  Kentucky  (1894)  154  U.  S.  204,  211. 


§  94  INTERSTATE  COMMERCE  245 

cases,  and  particularly  in  those  of  more  recent  date,  the 
Supreme  Court  has  recognized  that  the  States  in  the  exer- 
cises of  their  police  power  for  the  protection  of  their  citizens, 
may  incidentally,  and  sometimes  quite  directly,  affect  inter- 
state commerce,  and  has  declared  that  this  is  not  an  un- 
constitutional invasion  of  the  field  of  congressional  legis- 
lation, as  long  as  the  state  action  constitutes  a  bona  fide 
exercise  of  the  police  power,  and  does  not  unduly  burden 
interstate  commerce,  and  is  not  in  conflict  with  any  existing 
federal  legislation.1  It  would  seem  that  this  principle 
would  include  all  those  cases  which  have  been  held  to  fall 
within  the  doctrine  framed  in  the  Port  Wardens  case,  and 
that  it  states  the  basis  of  state  action  more  satisfactorily. 
It  is  not  surprising,  therefore,  that  we  hear  less  and  less  of 
the  States'  concurrent  power  over  interstate  commerce,  and 
more  of  the  validity  of  state  police  regulations  which 
incidentally  affect  such  commerce.  In  his  opinion  in  The 
Minnesota  Rate  Cases,  *  which  contains  the  most  elaborate 
judicial  review  of  this  subject,  Justice  Hughes  says: 

"It  has  repeatedly  been  declared  by  this  court  that  as 
to  those  subjects  which  require  a  general  system  or  uni- 
formity of  regulation  the  power  of  Congress  is  exclusive. 
In  other  matters,  admitting  of  diversity  of  treatment 
according  to  the  special  requirements  of  local  conditions, 
the  States  may  act  within  their  respective  jurisdictions 
until  Congress  sees  fit  to  act ;  and  when  Congress  does  act, 
the  exercise  of  its  authority  overrides  all  conflicting 
legislation.  .  .  .  The  principle  which  determines  this 
classification  underlies  the  doctrine  that  the  States  can- 
not under  any  guise  impose  direct  burdens  upon  inter- 
state commerce.  For  this  is  but  to  hold  that  the  States 

1  Typical  cases  among  many  are  Escanaba  Co.  v.  Chicago  (1882)  107 
U.  S.  678,  683;  Morgans  S.  S.  Co.  v.  Louisiana  (1886)  118  U.  S.  455; 
Reid  v.  Colorado  (1902)  187  U.  S.  137,  151;  Manigault  v.  Springs  (1905) 
199  U.  S.  473;  Second  Employers'  Liability  Cases  (1912)  223  U.  S.  I,  54; 
Savage  c.  Jones  (1912)  225  U.  S.  501,  524,  Gulf,  C.  &  St.  F.  Ry.  Co.  v. 
Texas  (1918)  246  U.  S.  58. 

1  (1913)  230  U.  S.  352,  399,  400,  402. 


246       THE  AMERICAN  CONSTITUTION       §  94 

are  not  permitted  directly  to  regulate  or  restrain  that 
which  from  its  nature  should  be  under  the  control  of  the 
one  authority  and  be  free  from  restriction  save  as  it  is 
governed  in  the  manner  that  the  national  legislature 
constitutionally  ordains.  .  .  .  But  within  these  limi- 
tations there  necessarily  remains  to  the  States,  until 
Congress  acts,  a  wide  range  for  the  permissible  exercise 
of  power  appropriate  to  their  territorial  jurisdiction 
although  interstate  commerce  may  be  affected." 

In  the  first  place  a  State  may  not  prohibit  the  shipment 
into  or  out  of  its  borders  of  goods  which  are  the  legitimate 
subject  of  commerce.1  The  only  goods  which  it  may 
absolutely  exclude  are  those  which  from  their  condition  are 
not  fit  for  any  use,  such,  for  instance,  as  cattle  afflicted  with 
some  virulent  disease,  or  decayed  food  stuffs,2  or  those 
which  have  been  divested  of  their  interstate  character  by 
act  of  Congress.3  Somewhat  similar  in  principle  are  the 
cases  which  hold  that  a  State  may  prohibit  the  exportation 
of  game4  or  of  water  from  its  streams  and  lakes.5  In  both 
cases  the  state  legislation  deals  with  property  which  in  its 
natural  state  is  not  the  subject  of  private  ownership  but 
belongs  to  the  community  as  a  whole,  and  the  Supreme 
Court  has  held  that  the  State,  in  allowing  its  appropriation, 
may  deny  to  it  the  character  of  subject  matter  of  interstate 
commerce.  A  State  may  not  exclude  from  its  borders 
natural  persons  or  corporations  desiring  to  do  an  interstate 
business.6  When  the  States  first  began  to  regulate  rail- 

1  Bowman  v.  Chicago,  etc.,  Ry.  Co.  (1888)  125  U.  S.  465;  West  v. 
Kansas  Nat.  Gas  Co.  (1911)  221  U.  S.  229. 

a  Bowman  v.  Chicago,  etc.,  Ry.  Co.  (1888)  125  U.  S.  465,  489;  Com- 
pagnie  Francaise  v.  Board  of  Health  ( 1 902)  1 86  U.  S.  380,  38 1 .  Similarly 
a  State  may  prevent  fruit  too  green  to  be  used  from  being  shipped  out 
of  the  State.  Sligh  v.  Kirkwood  (1915)  237  U.  S.  52. 

*  See  sec.  92. 

*  Geer  v.  Connecticut  (1896)  161  U.  S.  519. 

s  Hudson  County  W.  Co.  v.  McCarter  (1908)  209  U.  S.  349. 

6  Pembina  Mining  Co.  v.  Pennsylvania  (1888)  125  U.  S.  181 ;  Hooper  v. 
California  (1895)  155  U.  S.  648;  International  Text  Book  Co.  v.  Pigg 
(1910)  217  U.  S.  91.  Natural  persons  could  demand  admission  also 


§  94  INTERSTATE  COMMERCE  247 

road  rates  the  Supreme  Court  held  that  they  could  regulate 
the  rates  for  interstate  as  well  as  for  intrastate  shipments 
in  the  absence  of  legislation  on  the  subject  by  Congress.1 
Ten  years  later,  however,  when  the  court  took  the  matter 
under  serious  consideration,  it  repudiated  its  former  view  as 
having  been  ill-considered,  and  held  that  the  exercise  of  such 
a  right  by  the  States  would  have  so  serious  and  demoralizing 
an  effect  upon  interstate  commerce  as  to  be  entirely  unjusti- 
fiable.2 State  provision  against  race  discrimination  on 
interstate  conveyances  has  been  held  to  be  an  undue  inter- 
ference with  interstate  commerce. 3  It  has  been  held  that 
state  legislation  requiring  railroads  to  deliver  cars  from 
another  State  to  consignees  on  private  sidings  beyond  the 
line  of  the  railroad  casts  an  undue  and  invalid  burden  upon 
interstate  commerce, 4  and  the  same  was  held  with  regard 
to  a  state  statute  compelling  the  distribution  of  cars  in 
such  a  way  as  to  make  the  railroad  incur  heavy  penalties 
in  its  interstate  business. s 

On  the  other  hand  it  has  been  held  that,  until  Congress 
acts  in  such  matters,  a  State  may  regulate  pilotage,  and 
provide  for  the  improvement  of  harbors  and  waterways, 
though  they  are  interstate  highways,  and  make  quarantine 
regulations,  and  regulations  for  the  inspection  of  goods  to 
prevent  fraud  and  imposition.  Also,  in  the  absence  of 
federal  legislation,  interstate  carriers  may  be  held  liable 
for  misfeasances  and  nonfeasances  according  to  the  law  of 
the  State  where  the  act  or  omission  occurred,  and  their 
liability  to  employees,  as  well  as  their  liability  for  death  and 

under  the  privileges  and  immunities  clause  of  the  Constitution,  see  sees. 
204  and  205,  whether  desiring  to  do  interstate  business  or  not. 

'Peikv.  Chicago,  etc.,  Ry.  Co.  (1876)  94  U.S.  164. 

3  Wabash,  etc.,  Ry.  Co.  v.  Illinois  (1886)  1 18  U.  S.  557.  In  Pennsyl- 
vania Gas  Co.  v.  Public  Serv.  Com.  (1920)  252  U.  S.  23,  regulation  of 
rates  by  the  State  for  natural  gas  piped  from  Pennsylvania  and  furnished 
to  consumers  in  New  York  was  upheld,  in  the  absence  of  congressional 
regulation. 

3  Hallv.  DeCuir  (1877)  95  U.  S.  485. 

*  McNeill  v.  Southern  Ry.  Co.  (1906)  202  U.  S.  543. 

a  St.  Louis  &  S.  W.  Ry.  Co.  v.  Arkansas  (1910)  217  U.  S.  136. 


248       THE  AMERICAN  CONSTITUTION      §  95 

for  the  injury  to  or  loss  of  property  may  be  covered  by  state 
law.  The  States  may  also  compel  the  examination  of 
engineers,  may  require  the  heating  of  interstate  trains  and 
the  proper  guarding  of  crossings  and  the  like,  and  may  pro- 
hibit the  running  of  freight  trains  on  Sunday. x  The  State 
may  further  compel  the  stopping  of  interstate  trains  at 
points  within  the  State  in  order  to  procure  for  its  citizens 
reasonably  adequate  transportation  facilities,3  but  when 
such  legislation  goes  beyond  this  point  it  constitutes  an 
unreasonable  burden  upon  interstate  commerce  and  is 
invalid.3  When,  however,  Congress  legislates  on  any  of 
these  matters  state  legislation  is  annulled  insofar  as  it  is  in 
conflict  with  the  federal  statutes. 4 

§95.  State  Taxation  Affecting  Interstate  Commerce.5  We 
have  already  considered  what  constitutes  commerce,  and 
when  interstate  commerce  commences  and  ends. 6  It  is  now 
thoroughly  established  that  a  State  may  not  put  a  direct 
burden  upon  interstate  or  foreign  commerce  through  taxa- 
tion. It  may  not,  therefore,  tax  goods  or  persons  while  in  the 
course  of  transportation  in  such  commerce.  Nor  may  it  put 
a  tax  upon  the  agencies  of  interstate  or  foreign  commerce, 
nor  upon  the  receipts  from  interstate  commerce  as  such,  nor 
upon  the  act  of  carrying  it  on,  nor  upon  the  right  to  carry 
it  on. 7  But  property  which  is  within  the  borders  of  a  State 

1  Minnesota  Rate  Cases  (1913)  230  U.  S.  352,  402  to  411.  All  the 
cases  are  so  fully  collected  in  this  decision  that  it  seems  unnecessary  to 
set  them  out  here  individually. 

a  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Texas  (1918)  246  U.  S.  58. 

s  Missouri,  K.  &  T.  Ry.  Co.  v.  Texas  (1918)  245  U.  S.  484. 

« Chicago,  R.  I.,  etc.,  Ry.  i>.  Hardwick  Elevator  Co.  (1913)  226  U.  S. 
426  (distribution  of  cars);  Cooley  v.  Port  Wardens  (1851)  12  Howard 
299  (quarantine);  Reid  v.  Coloiado  (1902)  187  U.  S.  137,  146  (quaran- 
tine and  inspection  of  live-stock);  Second  Employers'  Liability  Cases 
(1912)  223  U.  S.  i,  51,  53. 

'Although,  perhaps,  the  logical  place  for  the  fullest  treatment  of  this 
subject  would  be  in  connection  with  the  States'  taxing  power  (see  sees. 
253  and  454),  for  the  sake  of  completeness  in  the  treatment  of  interstate 
commerce  it  seems  preferable  to  put  it  here. 

*  See  sees.  86  and  87. 

'Brown  v.  Maryland  (1827)  12  Wheaton  419;  Western  Un.  Tel.  Co.  v. 


§  95  INTERSTATE  COMMERCE  249 

is  no  less  a  proper  subject  of  taxation  because  it  previously 
moved  in  interstate  commerce,  if  at  the  time  it  is  taxed  it  is 
no  longer  a  part  of  such  commerce. x  There  is,  however,  this 
limitation  upon  the  last  stated  proposition,  namely,  that  a 
State  may  not  levy  a  tax  which  discriminates  against  goods 
which  have  been  introduced  from  other  States  or  from  for- 
eign countries,  though  these  goods  are  no  longer  a  part  of 
interstate  commerce,  for  such  discriminatory  action  would 
tend  to  impede  interstate  and  foreign  commerce. 2  It  does 
not  create  a  constitutional  objection  to  a  state  tax  on  prop- 
erty within  its  borders  that  the  property  in  question  is  used 
in  doing  an  interstate  business.  Such  property  receives  the 
same  protection  as  all  other  property  within  the  State  and  it 
is  just  that  it  should  bear  an  equal  burden.  This,  it  is  well 
established,  does  not  cast  any  direct  or  any  undue  burden 
upon  interstate  commerce.3  Such  a  tax  may  be  upon 
intangible  as  well  as  upon  tangible  property,  and,  as  we  see 
elsewhere,  where  a  person  or  company  is  doing  business  in 
several  States,  the  value  of  the  intangible  property  is 
apportionable  among  the  States  according  to  the  so-called 
"unit  rule."4 

State  taxes  on  gross  receipts,  when  applied  to  corpor- 
ations or  persons  doing  an  interstate  as  well  as  an  intrastate 
business,  have  caused  the  Supreme  Court  of  the  United 
States  a  good  deal  of  trouble.  In  State  Tax  on  Railway 

Texas  (1881)  105  U.  S.  460;  People  v.  Compagnie  Ge'ne'rale  Transatlan- 
tique  (1882)  107  U.  S.  59;  Robbins  v.  Shelby  County  Taxing  Dist.  (1887) 
120  U.  S.  489;  Leloup  v.  Mobile  (1888)  127  U.  S.  640,  648,  and  cases 
cited  (overruling  Osborne  v.  Mobile  (1872)  16  Wallace  479);  Brennan  v. 
Titusville  (1894)  153  U.  S.  289;  Adams  Exp.  Co.  v.  Ohio  (1897)  165 
U.  S.  194,  234  and  235,  and  cases  cited;  Kelley  v.  Rhoades  (1903)  188 
U.  S.  i ;  International  Text  Book  Co.  v.  Pigg  (1910)  217  U.  S.  91. 

1  Woodruff  v.    Parham  (1868)    8   Wallace  123;  Brown  v.  Houston 
(1885)  114  U.  S.  622;  American  Steel  Co.  v.  Speed  (1904)  192  U.  S.  500. 

2  Webber ».  Virginia  (1880)  103  U.  S.  344;  and  Darnell  &  Son  v.  Mem- 
phis (1908)  208  U.  S.  113,  in  which  latter  case  the  subject  is  fully  re- 
viewed by  Chief  Justice  White. 

3  Postal  Tel.  C.  Co.  v.  Adams  (1895)  155  U.  S.  688,  696;  Adams  Exp. 
Co.  v.  Ohio  (1897)  165  U.  S.  194,  220. 

4  See  sec.  252. 


250       THE  AMERICAN  CONSTITUTION      §  95 

Gross  Receipts1  it  was  held  that  such  a  tax  is  not  a  tax  on 
interstate  transportation,  but  is  a  tax  upon  a  fund  which 
has  become  the  property  of  the  company  mingled  with  its 
other  property,  and  which  has  thus  lost  its  character  as 
freight  earned.  It  is  also  suggested  that  the  tax  may  be 
considered  as  one  upon  the  franchises  exercised  by  grant  of 
the  taxing  State  as  long  as  the  tax  is  not  greater  than  would 
be  justifiable  as  a  franchise  tax.  The  suggestion  is,  how- 
ever, thrown  in  rather  as  an  afterthought.  Three  justices 
dissented  on  the  ground  that  the  tax  was  in  effect  a  tax 
upon  the  privilege  of  transporting  goods  through  the  State. 
In  Philadelphia  Steamship  Company  v.  Pennsylvania*  the 
court  had  presented  to  it  the  case  of  a  tax  upon  the  gross 
receipts  of  a  steamship  company  which  did  only  interstate 
and  foreign  business.  In  this  case  the  reasoning  and  con- 
clusion of  the  court  in  the  preceding  case,  with  regard  to  the 
tax  as  a  tax  upon  gross  receipts,  were  repudiated.  It  was 
held  that  the  earlier  case  could  not  be  sustained  upon  that 
ground — that  a  tax  upon  gross  receipts  is  substantially  a 
tax  upon  the  act  of  doing  the  business  by  which  the  receipts 
were  earned,  and  so,  as  far  as  the  receipts  come  from  inter- 
state commerce,  is  a  tax  upon  such  commerce,  and  is  there- 
fore unconstitutional.  The  court  was  this  time  unanimous. 
Between  the  dates  of  the  last  case  and  this  the  personnel  of 
the  court  had  changed  except  for  three  members,  two  of 
whom  had  dissented  in  the  previous  case.  The  third  one, 
who  wrote  the  opinion  in  the  instant  case,  apparently  con- 
curred with  the  majority  in  the  earlier  decision.  It  was 
suggested  that  the  former  decision  might  perhaps  be  upheld 
on  the  ground  that  the  tax  there  was  on  the  franchises 
granted  to  the  domestic  corporation.  In  Maine  v.  Grand 
Trunk  Railway  Company 3  the  court  had  before  it  an  excise  tax 
on  the  privilege  of  exercising  franchises  granted  by  the 
State,  measured  by  gross  receipts  per  mile  multiplied  by  the 
number  of  miles  of  railroad  in  the  State.  The  majority  of 
the  court  held  the  tax  valid  as  not  being  a  tax  on  gross 

1  (1872)  15  Wallace  284. 

2  (1887)  122  U.  S.  326.  »  (1891)  142  U.  S.  217. 


§  95  INTERSTATE  COMMERCE  251 

receipts  but  on  the  franchises,  and  so  distinguishable  from  the 
tax  in  the  preceding  case.  Four  justices  dissented,  holding 
this  was  in  effect  taxation  of  gross  receipts,  and  so  taxation 
of  interstate  commerce,  as  decided  in  the  preceding  case.  In 
Galveston,  Harrisburg,  etc.,  Railway  Company  v.  Texas1  the  tax 
under  consideration  was  levied  upon  a  railway  doing  intra- 
state  and  interstate  business  "equal  to  one  per  cent."  of  its 
gross  receipts.  The  majority  of  the  court  held  the  tax 
unconstitutional  as  a  tax  on  interstate  commerce  on  the 
authority  and  reasoning  of  the  Philadelphia  Steamship  case, 
which  was  declared  to  be  "unshaken."  The  Maine  case 
it  was  held  by  the  majority  might  be  distinguished  as  in  fact 
involving  a  tax  on  the  company's  right  of  way,  and  so  a 
property  tax — the  determination  of  the  validity  of  a  tax 
depending  upon  its  real  nature  and  not  upon  the  name 
attached  to  it.  Four  justices  dissented  on  the  ground  that 
the  decision  of  the  state  court  that  this  was  an  occupation 
tax  should  have  been  accepted,  and  the  tax  sustained  as 
such,  not  being  when  so  viewed  a  tax  on  interstate  commerce. 
In  Crew  Levick  Company  v.  Pennsylvania2  the  court  unani- 
mously held  invalid  as  a  tax  upon  interstate  commerce  a  tax 
of  one-half  mill  "on  each  dollar  of  the  whole  volume,  gross, 
of  business  transacted  annually."  A  large  part  of  the  sales 
of  the  company  affected  were  made  abroad.  A  tax  was  up- 
held in  United  States  Express  Company  v.  Minnesota3  which 
was  levied  upon  a  company  doing  interstate  business, 
measured  by  gross  receipts,  which  was  in  lieu  of  all  other 
property  taxes,  the  court  holding  that  such  a  tax  is  in  effect 
a  property  tax.  The  Maine  case  was  cited  as  authority  for 
this  decision.  The  same  conclusion  was  reached  in  Cudahy 
Packing  Company  v.  Minnesota*  with  the  qualification  that 
the  tax  must  not  be  in  excess  of  what  would  be  a  legitimate 
tax  upon  the  company's  property. 

1  (1908)  210  U.  S.  217. 

a  (1917)  245  U.  S.  292.  This  would  seem  in  effect  to  overrule  Ficklin 
v.  Shelby  County  Taxing  Dist.  (1892)  145  U.  S.  I,  although  not  expressly 
doing  so. 

a  (1912)  223  U.  S.  335.  < (1918)  246  U.  S.  450. 


252       THE  AMERICAN  CONSTITUTION      §  95 

From  these  cases  it  seems  apparent  that  a  tax  upon  gross 
receipts  as  such  of  a  person  or  corporation  doing  in  whole 
or  part  an  interstate  business  is  a  tax  upon  interstate  com- 
merce and  unconstitutional,  but  that  a  tax  levied  in  lieu  of 
other  property  taxes  measured  by  gross  receipts  is  to  be 
viewed  as  a  property  tax  and  legal,  if  not  more  than  could 
legitimately  be  levied  upon  the  property,  within  the  State,  of 
the  person  or  corporation  affected.  A  tax  cannot  be  levied 
upon  the  privilege  of  doing  an  interstate  business  in  a  State, x 
but  since  a  tax  may  legitimately  be  levied  upon  franchises 
granted  by  the  State,  it  would  seem  that  a  tax  which  is  bona 
fide  levied  upon  such  franchises,  and  not  in  excess  of  what 
a  tax  upon  such  privileges  may  legitimately  be,  though 
measured  by  gross  receipts,  is  to  be  viewed  as  a  franchise 
tax,  and  held  constitutional.3  In  one  of  the  cases  already 
discussed  it  was  suggested  by  way  of  dictum  that  a  State 
might  tax  the  net  income  of  a  corporation,  part  of  whose  busi- 
ness is  interstate. 3  This  was  directly  determined  in  a  case 
decided  in  1918. 4  The  court  pointed  out  that  it  is  the  net 
income  out  of  which  all  taxes  are  normally  paid,  and  held 
that  to  tax  the  net  income  as  such,  though  part  of  it  is 
derived  from .  interstate  commerce,  is  not  a  direct  burden 
upon  interstate  commerce,  and  is,  therefore,  not  un- 
constitutional. 

A  tax  upon  the  total  capital  stock  of  a  foreign  corporation 
doing  an  interstate  business  and  having  property  in  other 
States  is  unconstitutional  both  as  putting  an  undue  and 

1  Philadelphia  S.  S.  Co.  v.  Pennsylvania  (1887)  122  U.  S.  326,  342; 
Western  Un.  Tel.  Co.  v.  Kansas  (1910)  216  U.  S.  I.  But  the  fact  that  a 
tax  is  called  a  privilege  tax  is  not  sufficient.  When  such  a  tax  was  levied 
upon  a  telegraph  company  according  to  the  length  of  its  lines  in  the 
State,  in  lieu  of  all  other  taxes,  and  was  not  unreasonable  in  amount  it 
was  viewed  as  a  property  tax  and  upheld.  Postal  Teleg.  Cable  Co.  v. 
Adams  (1895)  155  U.  S.  688. 

*  A  State  may  levy  upon  a  foreign  corporation  an  excise  tax  upon  the 
privilege  of  doing  an  intrastate  business  in  the  State.  Baltic  Mining  Co. 
v.  Massachusetts  (1913)  231  U.  S.  68.  As  to  the  due  process  and  equal 
protection  clauses  in  this  connection  see  sees.  254  and  276. 

3  State  Tax  on  Railway  Gross  Receipts  (1872)  15  Wallace  284,  296. 

<  United  States  Glue  Co.  v.  Town  of  Oak  Creek  (1918)  247  U.  S.  321. 


§  95  INTERSTATE  COMMERCE  253 

direct  burden  upon  interstate  commerce,  and  also  as  being 
without  due  process  because  taxing  property  outside  of  the 
State. x  But  a  tax  upon  a  domestic  corporation,  levied  upon 
its  franchise  to  be  a  corporation,  measured  by  its  capital 
stock,  with  a  maximum  of  $2,500,  was  upheld  in  Kansas 
City  Railway  v.  Kansas.2  The  court  said  that  a  State  may 
levy  a  tax  on  such  a  franchise,  though  the  corporation  is 
doing  an  interstate  business,  and  that  interpreting  and 
applying  such  a  statute  as  this  it  will  look  to  the  substance 
and  not  to  the  words  used.  The  court  thought  that  the  tax 
law  before  it  was  a  bona  fide  tax  on  the  franchise,  and  not 
unreasonable  in  character,  and  held  that  the  fact  that  refer- 
ence was  made  to  capital  stock  in  determining  its  amount 
within  reasonable  limits  did  not  invalidate  it.  The  court 
has  held  similarly  that  a  tax  on  a  foreign  corporation  for  the 
privilege  of  doing  intrastate  business,  measured  by  capital 
stock,  but  not  to  exceed  $2,000,  is  valid,  on  the  same  reason- 
ing.3 It  seems  that  the  validity  of  these  taxes  rests  upon 
the  facts  that  they  are  not  based  wholly  upon  the  capital 
stock,  but  have  a  fixed  and  comparatively  low  maximum, 
and  that  they  appear  to  be  entirely  reasonable  as  taxes 
upon  the  privileges  involved.4 

A  tax  upon  interstate  telegraph  companies,  taking  the 
form  of  a  small  charge  per  pole,  was  justified  by  the  Supreme 
Court,  when  the  poles  were  placed  in  the  streets  of  a  muni- 
cipality, largely  as  a  sort  of  rental,  which  being  reasonable 
in  amount  was  not  an  undue  burden  upon  interstate  com- 
merce. s  In  another  case,  however,  where  it  appeared  that 
the  poles  were  set  on  a  railroad's  right  of  way,  the  court 

1  Looney  v.  Crane  (1917)  245  U.  S.  178;  International  Paper  Co.  t>. 
Massachusetts  (1918)  246  U.  S.  135,  and  cases  cited. 

a  (1916)  240  U.  S.  227. 

*  Baltic  Mining  Co.  v.  Massachusetts  (1913)  231  U.  S.  68. 

<In  General  Railway  Signal  Co.  v.  Virginia  (1918)  246  U.  S.  500, 
where  the  tax  was  similar  to  the  one  in  the  last  preceding  case,  except 
that  the  maximum  fixed  by  the  statute  was  $5000,  the  court  upheld  the 
enactment,  but  said:  "  It  seems  proper,  however,  to  add  that  the  case  is 
on  the  border  line." 

* Postal  Telegraph  Cable  Co.  v.  Richmond  (1919)  249  U.  S.  252. 


254       THE  AMERICAN  CONSTITUTION      §  95 

still  held  the  small  charge  constitutional  as  compensation  for 
governmental  supervision  and  regulation. x  Fees  which  are 
charged  to  cover  the  cost  of  such  inspection  as  is  justified 
under  the  State's  police  power,  are  constitutional,  though  they 
are  charged  against  those  engaged  in  interstate  commerce, 
if  they  do  not  substantially  exceed  the  cost  of  inspection. 2 
But  when  they  do  substantially  exceed  such  cost,  and  are 
therefore  obviously  levied  for  the  purpose  of  revenue,  they 
become  a  tax  upon  interstate  commerce,  and  so  uncon- 
stitutional.3  In  American  Manufacturing  Company  v.  St. 
Louis41  the  court  had  to  determine  whether  a  tax  was  in  fact 
a  tax  upon  the  sales  made  in  a  business,  which  were  part  of 
interstate  commerce,  or  upon  the  manufacture  of  the  goods 
which  were  later  sold.  It  determined  that  it  was  of  the 
latter  character,  and  that  the  levy  was,  therefore, 
constitutional. 

1  Mackay  Tel.  &  Cable  Co.  v.  Little  Rock  (1919)  250  U.  S.  94. 

2  Pure  Oils  Co.  v.  Minnesota  (1918)  248  U.  S.  158,  and  cases  cited. 

3  Standard  Oil  Co.  v.  Graves  (1919)  249  U.  S.  389,  and  cases  cited. 

4  (1919)  250  U.  S.  459. 


CHAPTER   IX 

WAR     POWERS     AND     gONTROL     OF     MILITARY     AFFAIRS 

§96.  War  and  Peace.  The  Constitution  gives  to  Con- 
gress the  power  "to  declare  war,  grant  letters  of  marque 
and  reprisal,  and  make  rules  concerning  captures  on  land 
and  water."1  On  the  other  hand  the  same  instrument  ex- 
pressly forbids  the  States  to  ' '  engage  in  war  unless  actually 
invaded,  or  in  such  imminent  danger  as  will  not  admit  of 
delay,"  without  the  consent  of  Congress.2  Thus  it  seems 
clear  that  the  exclusive  power  to  declare  war  rests  in  the 
national  legislature.  This  declaration  may  take  either  the 
form  that  a  state  of  war  shall  exist  or  that  it  does  exist. 
In  the  case  of  our  Civil  War  the  Supreme  Court  recognized 
the  power  of  the  President  by  proclamation  to  declare  a 
state  of  war  to  exist,  where  the  internal  strife  had  reached 
in  his  opinion  the  proportions  of  a  public  conflict.  The 
soundness  of  this  decision  seems  very  doubtful,  and  Justice 
Nelson  dissented  vigorously.3  It  has  never  been  suggested 
that  he  would  have  this  power  in  the  case  of  a  conflict  with 
a  foreign  government.  It  is  of  course  true,  however,  that 
it  is  possible  for  the  President,  as  a  result  of  his  control  of 
international  affairs,  to  create  a  situation  which  will  be 
likely  to  lead  to  war,  or  as  a  result  of  which  war  may  become 
in  fact  inevitable. 

The  establishment  of  peace  between  two  belligerents 
generally  results  from  a  treaty  binding  upon  both  parties 
and  establishing  their  mutual  rights  and  obligations.  As 
we  have  seen,  the  treaty-making  power  is  vested  in  the 

1  Art.  I,  sec.  8,  par.  n. 

2  Art.  I,  sec.  10,  par.  3. 

»  The  Prize  Cases  (1862)  2  Black  635. 

255 


256       THE  AMERICAN  CONSTITUTION       §  96 

President  and  the  Senate  acting  together.  Besides  his 
part  in  treaty-making  the  President  as  Commander-in- 
Chief  may  play  an  important  preliminary  part  in  the  estab- 
lishment of  peace  through  the  armistice  terms  which  he 
lays  down  or  to  which  he  consents.1  The  Supreme  Court 
also  recognized  the  right  of  the  President,  in  the  case  of  our 
Civil  War,  to  declare  the  existence  of  a  state  of  peace.2 
Such  a  right,  however,  would  probably  not  be  recognized  in 
the  case  of  a  war  with  a  foreign  power  commenced  by 
congressional  action.  In  such  a  case  the  state  of  war  being 
the  result  of  law  it  would  seem  that  that  law  could  be  taken 
off  the  statute  book  only  by  some  action  having  the  force  of 
law. 

After  the  World  War  the  Treaty  of  Versailles  with  Ger- 
many and  Austria-Hungary  was  negotiated  by  representa- 
tives of  this  country,  and  of  those  countries  with  which  we 
were  associated,  but  this  treaty  the  Senate  refused  to  ratify. 
Finally  on  July  2,  1921,  was  approved  a  joint  resolution 
adopted  by  Congress,  declaring  that  the  state  of  war,  which 
by  previous  joint  resolutions  had  been  declared  to  exist, 
was  now  at  an  end.  By  the  terms  of  this  resolution  there 
were  reserved  to  the  United  States  all  of  the  rights  and  privi- 
leges to  which  they  had  become  entitled  under  the  terms  of 
the  armistice,  or  by  force  of  the  Versailles  treaty,  or  in  any 
way  by  reason  of  the  participation  by  this  country  in  the 
war.3  Some  doubt  has  been  expressed  as  to  the  constitu- 
tional right  of  Congress  to  declare  peace,  in  view  of  the 
fact  that  the  establishment  of  peace  would  be  the  proper 
subject  matter  of  a  treaty.  In  support  of  this  position  it  is 
pointed  out  that  in  the  Constitutional  Convention  it  was 
proposed  to  include  among  the  powers  of  Congress  the 
power  to  "make  peace,"  and  that  this  motion  was  lost.4 

1  See  sees.  28  and  33. 

a  The  Protector  (1871)  12  Wallace  700. 

»  Public  Resolution,  No.  8,  67th  Congress. 

4  Farrand,  The  Records  of  the  Federal  Convention,  vol.  ii,  p.  319.  By 
the  Articles  of  Confederation  (art.  IX)  Congress  had  the  sole  power  to 
"determine  on  peace  and  war, ' '  except  when  a  State  was  invaded  or  inva- 
sion was  so  imminent  as  not  to  admit  of  delay  until  Congress  could  act. 


§  97  WAR  POWERS  257 

It  is  perhaps  worth  noting  that  when  this  action  was  taken 
it  was  proposed  to  vest  in  the  Senate  alone  the  treaty  mak- 
ing power,  and  the  apparent  reason  for  not  expressly  giving 
to  Congress  the  power  to  make  peace  was  that ' '  it  should  be 
more  easy  to  get  out  of  war,  than  into  it."1  It  would  seem 
that  since  Congress  has  the  express  power  to  create  or  de- 
clare a  state  of  war  by  legislative  action,  it  should  be  held 
to  have  authority  to  repeal  such  action  and  thereby  return 
the  country  to  a  state  of  peace,  in  the  absence  of  any  ex- 
press prohibition.  The  fact  that  the  establishment  of  peace 
is  a  proper  subject  of  the  treaty  power  does  not  prove  that 
Congress  is  excluded  from  that  field.  There  is  a  large  field 
with  regard  to  international  commerce  in  which  the  govern- 
ment can  act  either  by  treaty  or  by  congressional  legislation. 3 
If  this  power  of  declaring  peace  is  not  recognized  as  residing 
in  Congress  we  might  find  it  quite  impossible  in  some 
instances  to  get  out  of  a  technical  state  of  war,  as  where  the 
President  and  two  thirds  of  the  Senate  cannot  agree  on  the 
terms  of  a  peace  treaty,  or  where  the  opposing  belligerent 
and  this  country  cannot  so  agree,  or  where  the  opposing 
government  has  been  destroyed.3 

§97.  Raising  Military  Forces.  Congress  is  given  author- 
ity by  the  Constitution  to  raise  money  for  "the  common 
defense,"4  and 

"to  raise  and  support  armies,  but  no  appropriation  of 
money  to  that  use  shall  be  for  a  longer  term  than  two 
years ;  to  provide  and  maintain  a  navy ;  to  make  rules  for 
the  government  and  regulation  of  the  land  and  naval 
forces;  to  provide  for  calling  forth  the  militia  to  execute 
the  laws  of  the  Union,  suppress  insurrections,  and  repel 
invasions ;  to  provide  for  organizing,  arming  and  disciplin- 
ing the  militia,  and  for  governing  such  part  of  them  as 
may  be  employed  in  the  service  of  the  United  States, 

1  Farrand,  The  Records  of  the  Federal  Convention,  vol.  ii,  p.  319. 
3  See  sec.  34. 

3  See  the  article  by  E.  S.  Corwin  on  "  The  Power  of  Congress  to  De- 
clare Peace, "  18  Mich  L.  Rev.,  669. 
<  Art.  I,  sec.  8,  par.  I. 
17 


258       THE  AMERICAN  CONSTITUTION       §  97 

reserving  to  the  States  respectively  the  appointment  of 
the  officers,  and  the  authority  of  training  the  militia 
according  to  the  discipline  prescribed  by  Congress ;  .  .  . 
to  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers.  .  .  .  MI 

Under  the  Articles  of  Confederation  Congress  had  power 
to  build  and  equip  a  navy,  but  had  only  power  "to  agree 
upon  the  number  of  land  forces,  and  to  make  requisition 
from  each  State  for  its  quota."2  There  was  no  doubt,  how- 
ever, that  each  State  had  power  to  demand  military  service 
of  its,  citizens,  and  at  least  nine  of  the  original  state  con- 
stitutions contained  provisions  to  this  effect.3  This  requisi- 
tion system  constituted  one  of  the  great  weaknesses  of  the 
national  government  during  the  period  of  the  Revolution, 
and  one  which  undoubtedly  the  framers  of  the  Constitution 
intended  to  remedy.  For  three  quarters  of  a  century  after 
the  adoption  of  the  Constitution  the  armies  of  the  United 
States  were  raised  by  voluntary  enlistment,  although  during 
the  War  of  1812  Mr.  Monroe,  then  Secretary  of  War  in 
President  Madison's  cabinet,  suggested  to  Congress  several 
plans  for  compulsory  military  service.4  In  the  Civil  War 
the  policy  of  compulsory  military  service  was  in  fact 
adopted,  and  four  drafts  were  made  under  it,  producing  a 
force  of  about  a  quarter  of  a  million  men. s  The  constitu- 
tionality of  this  legislation  was  raised  in  only  one  case  in  a 
state  court,  and  was  there  upheld.6  Under  the  constitution 
of  the  Confederate  States,  containing  provisions  on  the  war 
power  identical  with  those  in  the  Constitution  of  the  United 
States,  men  were  drafted  into  the  military  service,  and  this 
action  was  repeatedly  held  constitutional.7 

1  Art.  I,  sec.  8,  pars.  12,  13,  14,  15,  16  and  18. 

•  Art.  IX. 

3  See  Selective  Draft  Law  Cases  (1918)  245  U.  S.  366,  380. 

<  Ibid.,  385. 

s  Act  of  March  3,  1863,  12  Stat.  731;  Historical  Report,  Enrollment 
Branch,  Provost  Marshal  General's  Bureau,  March  17,  1866. 

'Kneedler  v.  Lane  (1863)  45  Pa.  St.  238. 

'Burroughs  v.  Peyton  (1864)  16  Gratton  470;  Jeffers  v.  Fair  (1862) 
33  Ga.  347;  Daly  v.  Harris  (1864)  33  Ga.  (Supp.)  38,  54;  Barber  v.  Irwin 


§  97  WAR  POWERS  259 

After  the  United  States  entered  the  World  War  Congress 
passed  the  Compulsory  Draft  Law, x  providing  for  compul- 
sory service  in  the  armies  of  the  United  States.  The  con- 
stitutionality of  this  law  was  attacked  in  a  number  of  cases, 
which  were  dealt  with  together  by  the  Supreme  Court  of  the 
United  States  under  the  title  of  Selective  Draft  Law  Cases.2 
The  decision  was  unanimous  and  the  opinion  was  written 
by  Chief  Justice  White.  The  court  declared  that  under  the 
power  "to  declare  war;  ...  to  raise  and  support  armies," 
and  ' '  to  make  all  laws  which  shall  be  necessary  and  proper 
for  ^carrying  into  execution  the  foregoing  powers,"  Congress 
has  power  to  compel  military  service,  having  in  this  respect 
all  of  the  power  previously  possessed  by.  the  individual 
States;  that  this  is  the  more  clearly  evident  from  the  fact 
that  the  Constitution  forbids  the  States  to  maintain  armies 
or  to  engage  in  war  except  when  invaded  or  in  such  imminent 
danger  as  will  not  admit  of  delay. 3  Such  service  is  not  in- 
voluntary servitude  in  any  such  sense  as  was  intended  by 
those  who  framed  and  adopted  the  Thirteenth  Amendment, 
but  is  merely  the  enforcement  of  the  duty  of  every  citizen 
to  support  his  government.  That  this  method  of  raising 
an  army  is  a  proper  method  to  be  adopted  by  a  sovereign 
state  in  the  exercise  of  its  war  powers  is  further  evidenced 
by  the  fact  that  it  has  been  adopted  by  almost  all  of  the 
nations  of  the  world. 4  It  was  contended,  however,  that  the 
draft  law  was  in  conflict  with  the  constitutional  provision 

(1864)  34  Ga.  27;  Parker  v.  Kaughman  (1865)  34  Ga.  136;  Ex  parte 
Coupland  (1862)  26  Tex.  386;  Ex  parte  Hill  (1863)  38  Ala.  429;  In  re 
Emerson  (1864)  39  Ala.  437;  In  re  Pill  (1864)  39  Ala.  459;  Simmons  v. 
Miller  (1864)  40  Miss.  19;  Gatlin  v.  Walton  (1864)  60  N.  Car.  333, 
408. 

1  Act  of  May  18,  1917,  40  Stat.  76.  See  A.  A.  Gillette,  "War  Legisla- 
tion for  the  Army,  "77  Mich.  L.  Rev.,  127. 

*  (1918)  245  U.  S.  366. 

3  Art.  I,  sec.  10,  par.  3. 

4  Selective  Draft  Law  Cases  (1918)  245  U.  S.  366,  378,  where  the 
legislation  of  the  various  countries  is  referred  to.    It  is  interesting  to 
note  that  the  Second  Amendment  as  proposed  by  Madison  would  have 
excused  from  military  service  on  the  ground  of  religious  scruples.    See 
sec.  131. 


26o       THE  AMERICAN  CONSTITUTION      §  97 

which  leaves  the  militia  under  the  control  of  the  States. 
But  the  court  said-: 

"There  was  left  therefore  under  the  sway  of  the  States 
undelegated  the  control  of  the  militia  to  the  extent  that 
such  control  was  not  taken  away  by  the  exercise  by  Con- 
gress of  its  power  to  raise  armies.  This  did  not  diminish 
the  military  power  or  curb  the  full  potentiality  of  the 
right  to  exert  it,  but  left  an  area  of  authority  requiring  to 
be  provided  for  (the  militia  area)  unless  and  until  by  the 
exertion  of  the  military  power  of  Congress  that  area  had 
been  circumscribed  or  totally  disappeared."1 

It  rests  in  the  discretion  of  Congress  to  use  the  militia  as  it 
is  empowered  to  do  * '  to  execute  the  laws  of  the  Union,  sup- 
press insurrections,  and  repel  invasions,"  if  it  so  desires,  but 
this  does  not  in  any  way  curb  its  power  to  raise  an  army  by 
conscription. 

In  a  later  case  it  was  contended  that  it  was  unconstitu- 
tional to  compel  persons  to  serve  in  the  army  overseas, 
because  the  militia  clause  only  gives  Congress  the  power  to 
call  out  that  body  "to  suppress  insurrections,  and  repel 
invasion."  The  court,  however,  held  that  there  is  no  such 
limitation  upon  the  power  of  the  national  government  in 
raising  an  army  under  its  war  powers.2  In  order  to  make 
the  services  of  the  members  of  the  militia  available  to  the 
nation  for  all  purposes,  the  National  Defense  Act  of  191 63 
provided  for  their  taking  an  oath  to,  and  promising  obe- 
dience to  the  orders  of  the  federal  government  as  well  as  to 
the  state  governments,  and  for  their  being  drafted  into 
the  federal  service  as  individuals,  not  as  organizations,  at 
the  order  of  the  President.4  , 

1  Selective  Draft  Law  Cases  (1918),  245  U.  S.  366,  383. 
3  Cox  v.  Wood  (1918)  247  U.  S.  3. 

3  Act  of  June  3,  1916,  sees.  70,  73,  1 1 1 ,  39  Stat.  166. 

4  A  State  may  not  prohibit  its  citizens  to  possess  and  bear  arms  and  so 
destroy  the  resources  of  the  federal  government  for  the  protection  of 
public  security,  but  it  may  regulate  the  right  to  possess  and  bear  arms 
so  long  as  it  does  not  conflict  with  national  legislation.    Presser  v.  Illinois 
(1886)  n6U.  S.  252. 


§  98  WAR  POWERS  261 

The  President  as  Commander-in-Chief  of  the  army  and 
navy  has  entire  authority  to  provide  for  the  disposition  of 
military  and  naval  forces  of  the  United  States,  and  to  direct 
all  military  campaigns.1  But  Congress  has  authority  to 
provide  for  the  raising  of  military  forces,  to  determine  what 
their  equipment  and  discipline  shall  be,  and  to  make  appro- 
priations for  their  maintenance.  It  is,  therefore,  clear  that 
the  ultimate  control  of  the  military  machine  is  in  the  legisla- 
tive rather  than  the  executive  branch  of  the  government. 

§98.  Courts -Martial  and  Martial  Law.  So-called  martial 
law,  except  in  occupied  territory  of  an  enemy,  is  merely  the 
calling  in  of  the  aid  of  military  forces  by  the  executive,  who 
is  charged  with  the  enforcement  of  the  law,  with  or  without 
special  authorization  by  the  legislature.  Such  declaration  of 
martial  law  does  not  suspend  the  civil  law,  though  it  may 
interfere  with  the  exercise  of  one's  ordinary  rights.  The 
right  to  call  out  the  military  forces  to  maintain  order  and 
enforce  the  law  is  simply  part  of  the  police  power.  It  is  only 
justified  when  it  reasonably  appears  necessary,  and  only 
justifies  such  acts  as  reasonably  appear  necessary  to  meet 
the  exigency,  including  the  arrest,  or  in  extreme  cases  the 
killing  of  those  who  create  the  disorder  or  oppose  the 
authorities.  When  the  exigency  is  over  the  members  of  the 
military  forces  are  criminally  and  civilly  liable  for  acts  done 
beyond  the  scope  of  reasonable  necessity.  When  honestly 
and  reasonably  coping  with  a  situation  of  insurrection  or 
riot  a  member  of  the  military  forces  cannot  be  made  liable 
for  his  acts,  and  persons  reasonably  arrested  under  such 
circumstances  will  not,  during  the  insurrection  or  riot,  be 
free  by  writ  of  habeas  corpus.2 

In  the  famous  case  of  Ex  parte  Milligan3  the  question 
was  whether  in  a  State  of  the  Union  where  the  civil  courts 
were  in  full  operation,  and  the  federal  government  was  un- 
opposed, military  trial  could  constitutionally  be  substituted 
for  civil  trial,  because  the  United  States  were  at  war  with 

1  See  sec.  28. 

3  Moyer  v.  Peabody  (1909)  212  U.  S.  78. 

3  (1866)  4  Wallace  2. 


262       THE  AMERICAN  CONSTITUTION      §  98 

the  Southern  States.  The  Supreme  court  said:  "No  usage 
of  war  could  sanction  a  military  trial  there  for  any  offences 
whatever  of  a  citizen  in  civil  life,  in  nowise  connected  with 
the  military  service.  Congress  could  grant  no  such  power. ' ' r 
Courts-martial  are  not  part  of  the  judicial  system  pro- 
vided for  in  the  Judiciary  Article2  of  the  Constitution,  but 
they  are  courts  of  the  United  States  created  under  the  power 
to  govern  the  military  forces,  and  by  the  terms  of  the  Fifth 
Amendment  "cases  arising  in  the  land  or  naval  forces,  or  in 
the  militia,  when  in  actual  service  in  time  of  war  or  public 
danger"  are  excepted  from  the  rule  that  criminal  prosecu- 
tions must  be  commenced  by  indictment,  and  this  is  held  to 
except  such  cases  from  the  rule  of  the  Sixth  Amendment 
that  there  must  be  a  jury  trial  in  criminal  cases. 5  An  appli- 
cation for  a  writ  of  habeas  corpus  is  the  proper  means  by 
which  to  test  the  jurisdiction  of  a  military  court.4  "Un- 
doubtedly courts-martial  are  tribunals  of  special  and  limited 
jurisdiction  whose  judgments,  so  far  as  questions  relating  to 
their  jurisdiction  are  concerned,  are  always  open  to  collat- 

*Ex  parte  Milligan  (1866)  4  Wallace  2,  121.  3  Art.  III. 

*  Dynes  v.  Hoover  (1857)  20  Howard  65;  Ex  parte  Reed  (1879)  100 
U.  S.  13, 21 ;  Kurtz  v.  Moffitt  (1865)  1 15  U.  S.  487,  500;  Grafton  v.  United 
States  (1907)  206  U.  S.  333;  Kahn  v.  Anderson  (1921)  255  U.  S.  i,  8. 

«  That  a  writ  of  habeas  corpus  is  not  always  an  effective  weapon 
against  military  authorities  is  evidenced  by  Chief  Justice  Taney's  state- 
ment in  Ex  parte  Merryman  (1861)  Fed.  Cas.  No.  9,487,  where  an 
attachment  was  issued  but  the  officer  was  prevented  by  military  force 
from  serving  it:  "I  have  exercised  all  the  power  which  the  Constitution 
and  laws  confer  upon  me,  but  that  power  has  been  resisted  by  a  force  too 
strong  for  me  to  overcome.  It  is  possible  that  the  officer  who  has  in- 
curred this  grave  responsibility  may  have  misunderstood  his  instruc- 
tions, and  exceeded  the  authority  intended  to  be  given  him,  I  shall, 
therefore,  order  all  the  proceedings  in  this  case,  with  my  opinion,  to  be 
filed  and  recorded  in  the  Circuit  Court  of  the  United  States  for  the 
district  of  Maryland,  and  direct  the  clerk  to  transmit  a  copy,  under  seal, 
to  the  President  of  the  United  States.  It  will  then  remain  for  that  high 
officer,  in  fulfilment  of  his  constitutional  obligation  to  '  take  care  that  the 
laws  be  faithfully  executed,'  to  determine  what  measures  he  will  take  to 
cause  the  civil  process  of  the  United  States  to  be  respected  and  enforced. " 
See  also  Ex  parte  Benedict  (1862)  Fed.  Cas.  No.  1,292;  Ex  parte  Moores 
(1870)  64  N.  C.  802. 


§  98  WAR  POWERS  263 

eral  attack."1  But  judgments  of  military  courts  having 
jurisdiction  cannot  be  reviewed  or  set  aside  by  civil  tri- 
bunals.2 

The  Articles  of  War3  not  only  subject  to  trial  by  court- 
martial  persons  actually  in  the  military  service,  but  others 
as  well.  .  The  ninety-fourth  article  confers  upon  courts- 
martial  jurisdiction  to  try  officers  and  soldiers,  after  they 
have  severed  their  connection  with  the  service,  for  certain 
frauds  against  the  government  committed  before  their  dis- 
charge. A  similar  provision  in  the  Articles  for  the  Govern- 
ment of  the  Navy  has  been  upheld  by  a  federal  court,4  and 
these  provisions  may  probably  be  supported  as  dealing  with 
"cases  arising  in  the  land  and  naval  forces."5  The  second 
article  subjects  to  military  law  administered  by  courts- 
martial  "all  persons  under  sentence  adjudged  by  courts- 
martial."  This  would  include  officers  and  men  who  upon 
conviction  had  been  dishonorably  discharged  as  well  as 
civilians  who  had  been  tried  by  military  courts,  under  the 
provisions  to  be  noted  in  a  moment.  Those  persons  who  at 
the  time  of  their  trial  by  court-martial  were  in  military  ser- 
vice, though  upon  conviction  dismissed  from  the  service, 
are  viewed  as  still  part  of  the  military  forces  for  purposes  of 
discipline,  and  it  is  held  that  they  may,  therefore,  be  sub- 
jected to  trial  by  a  military  court. 6  The  provision  in  so.  far 
as  it  applies  to  civilians  under  sentence  adjudged  by  courts- 
martial  seems  not  to  have  been  passed  upon  by  the  cpurts, 
but  it  has  been  suggested  that  this  provision  can  be  sus- 
tained on  the  ground  that  any  offense  committed  in  a  prison 

1  Givens  v.  Zerbst  (1921)  255  U.  S.  II,  19. 

3  United  States  v.  Pridgeon  (1894)  153  U.  S.  48,  Johnson  v.  Sayre 
(1895)  158  U.  S.  109;  Reaves  v.  Ainsworth  (1911)  219  U.  S.  296,  304. 

3  U.  S.  Rev.  Stat.  sees.  1342  and  1343,  as  amended  by  act  of  Aug.  29, 
1916,  39  Stat.  619.  See  also  Articles  for  the  Government  of  the  Navy, 
U.  S.  Rev.  Stat.  sec.  1624. 

*  Ex  parte  Bogart  (1873)  2  Sawyer  396;  and  see  Ex  parte  Milligan 
(1866)  4  Wallace,  2,  138. 

s  See  E.  M.  Morgan,  "  Court- Martial  Jurisdiction  Over  Non- Military 
Persons  under  the  Articles  of  War, "  4  Minn.  L.  Rev.,  .79,  83. 

6  Carter  v.  McClaughry  (1902)  183  U.  S.  365,  383;  Kahn  v.  Anderson 
(1921)  255  U.S.  1,7. 


264       THE  AMERICAN  CONSTITUTION      §  98 

tinder  the  jurisdiction  of  army  authorities  constitutes  a 
case  arising  in  the  land  forces.1 

The  second  article  of  war  also  subjects  to  military  law 
"all  retainers  to  the  camp  and  all  persons  accompanying  or 
serving  with  the  armies  of  the  United  States  without  the 
territorial  jurisdiction  of  the  United  States,  and  in  time  of 
war  all  such  retainers  and  persons  accompanying  or  serving 
with  the  armies  of  the  United  States  in  the  field,  both  within 
and  without  the  territorial  jurisdiction  of  the  United  States, 
though  not  otherwise  subject  to  these  articles."  Since  the 
constitutional  guaranties  do  not  apply  outside  of  the  terri- 
torial limits  of  the  United  States,2  there  is  clearly  no  con- 
stitutional ground  for  attacking  the  first  clause  above 
quoted,  in  so  far  as  it  applies  to  trial  without  the  territorial 
jurisdiction  of  the  United  States.  Provisions  for  trial  by 
courts-martial  of  camp  followers  and  those  accompanying 
the  army  were  in  force  before  the  adoption  of  the  Constitu- 
tion, and  have  been  in  force  ever  since,  and  were  never 
questioned  until  the  late  war.  They  have,  however,  come 
before  the  federal  courts  recently  and  apparently  are  held 
constitutional  in  their  entirety.3  Such  provisions  would 
seem  to  be  necessary  for  the  maintenance  of  military  disci- 
pline, and  would  seem  reasonably  to  come  within  the 
clause  as  to  "cases  arising  in  the  land  and  naval  forces." 

The  eighty-first  article  of  war  declares  that  "whosoever 
relieves  the  enemy  with  arms,  ammunition,  supplies,  money, 
or  other  thing,  or  knowingly  harbors  or  protects  or  holds 
correspondence  with  or  gives  intelligence  to  the  enemy, 
either  directly  or  indirectly,  shall  suffer  death,  or  such  other 
punishment  as  a  court-martial  or  military  commission  may 
direct."  And  the  eighty-second  article  declares  that  "any 
person  who  in  time  of  war  shall  be  found  lurking  or  acting  as 
a  spy  in  or  about  any  of  the  fortifications,  posts,  quarters,  or 
encampments  of  any  of  the  armies  of  the  United  States,  or 

1  E.  M.  Morgan,  "  Court- Martial  Jurisdiction  over  Non- Military 
Persons  under  the  Articles  of  War, "  4  Minn.  L.  Rev.,  79,  87. 

a  Ex  parte  Gerlach  (1917)  247  Fed.  616;  Ex  parte  Fall  (1918)  251  Fed. 
415;  Ex  parte  Jochen  (1919)  257  Fed.  200.  3  Ibid. 


§  98  WAR  POWERS  265 

elsewhere,  shall  be  tried  by  a  general  court-martial  or  by  a 
military  commission,  and  shall,  on  conviction  thereof,  suffer 
death."  The  acts  punishable  by  the  eighty-first  article 
constitute  treason  as  defined  in  the  Constitution,1  and 
treason  is  a  crime  which  clearly  comes  within  the  guaranties 
contained  in  that  instrument  with  regard  to  indictment  and 
trial  by  jury  except  "in  cases  arising  in  the  land  and  naval 
forces."  The  words  of  the  article  do  not  confine  its  opera- 
tion to  cases  involving  members  of  the  land  and  naval  forces, 
nor  has  it  been  given  such  narrow  interpretation.  As  to 
persons  in  the  land  and  naval  forces,  and  as  to  civilians 
properly  subject  to  military  law  under  the  second  article  as 
discussed  in  the  last  preceding  paragraph,  the  article  seems 
quite  clearly  constitutional,  since  such  cases  would  arise  in 
the  land  and  naval  forces.  It  would  seem  as  clearly  not 
constitutional  if  attempted  to  be  applied  to  all  civilians 
indiscriminately.  It  has,  however,  been  contended  that  the 
article  may  constitutionally  be  applied  to  "those  civilians 
whose  offenses  occur  in  the  theatre  of  war,  in  the  theatre  of 
operations,  or  in  any  place  over  which  the  military  forces 
have  actual  control  and  jurisdiction." 2  This,  at  least,  would 
seem  to  go  to  the  extreme  limit  of  constitutionality.  In  so 
far  as  the  eighty-second  article  with  regard  to  spies  applies 
to  members  of  the  army  and  navy  it  would  seem  to  be  con- 
stitutional beyond  question.  As  applied  to  a  member  of  the 
armed  forces  of  the  enemy  it  would  seem  constitutional,  if 
for  no  other  reason,  as  a  legitimate  and  recognized  method  of 
carrying  on  war  between  opposing  forces.  It  would  also 
seem  constitutional  as  applied  to  alien  enemies,  not  members 
of  the  opposing  armed  forces.  They  are  not  protected  by 
any  constitutional  guaranties,3  and  would,  in  such  transac- 
tions as  are  covered  by  the  provisions  of  this  article,  be  in 

1  "Treason  against  the  United  States  shall  consist  only  in  levying 
war  against  them,  or  in  adhering  to  their  enemies,  giving  them  aid  and 
comfort."  Art.  Ill,  sec.  3,  par.  i. 

3E.  M.  Morgan,  "Court-Martial  Jurisdiction  over  Non-Military 
Persons  under  the  Articles  of  War,"  4  Minn.  L.  Rev.,  79,  107,  and  see 
pp.  97  to  107. 

3  De  Lancy  v.  United  States  (1918)  249  Fed.  625. 


266       THE  AMERICAN  CONSTITUTION       §  98 

no  different  position  from  that  of  members  of  the  opposing 
army.  But  such  acts  if  done  by  a  citizen  would  constitute 
treason,  and  what  has  been  said  as  to  citizens  in  connection 
with  article  eighty-one  would  equally  apply  here.  The  lan- 
guage of  article  eighty-two  would  cover  acts  done  by  citi- 
zens anywhere  within  the  United  States,  and  this  clearly 
goes  too  far.1 

Members  of  military  forces  in  enemy  territory  are  amen- 
able only  to  military  tribunals,2  but  their  acts  when  done 
within  the  territory  of  the  United  States  may  subject  them 
to  criminal  liability  by  the  laws  of  the  States  in  which  their 
acts  are  done  as  well  as  to  punishment  under  the  articles  of 
war.  The  seventy-fourth  article  of  war  requires  that  when  a 
person,  who  is  subject  to  military  law,  is  accused  of  a  crime 
committed  within  the  United  States,  punishable  by  the  law 
of  the  land,  he  shall  be  surrendered  to  the  civil  authorities 
upon  demand,  "except  in  time  of  war,"  and  except  when  he 
is  held  by  the  military  authorities  to  answer,  or  is  awaiting 
trial  or  the  result  of  trial,  or  is  undergoing  sentence  for  an 
offense  under  the  articles  of  war.  Article  ninety-two  pro- 
vides that  no  person  shall  be  tried  by  court-martial  for 
murder  or  rape  committed  within  the  United  States  "in 
time  of  peace."  In  time  of  peace,  then,,  the  civil  tribunals 
have  the  sole  right  to  punish  persons  who  are  subject  to 
military  law  for  murder  and  rape,  and  in  all  other  cases,  in 
time  of  peace,  military  authorities  must  recognize  the  super- 
ior right  of  the  civil  tribunals  over  such  persons  unless  such 
authorities  have  actually  taken  jurisdiction  of  such  persons 
for  the  purpose  of  trial  and  punishment.  In  Caldwell  v. 
Parker*  the  question  was  raised  whether  in  time  of  war  the 
military  authorities  have  exclusive  jurisdiction  to  try  such 
persons  for  criminal  offenses.  The  court  held  that  they  have 
not,  and  that  a  state  court  may,  therefore,  try  a  soldier  in 
time  of  war  for  a  crime  committed  within  the  State.  The 

1  See  E.  M.  Morgan,  "  Court- Martial  Jurisdiction  over  Non-Military 
Persons  under  the  Articles  of  War, "  4  Minn.  L.  Rev.,  79,  107  to  1 16. 
3  Coleman  v.  Tennessee  (1878)  97  U.  S.  509. 
3  (1920)  252  U.  S.  376. 


§  99  WAR  POWERS  267 

court  even  questioned  whether  the  exceptions  in  articles 
seventy-four  and  ninety-two  with  regard  to  time  of  war  were 
intended  "to  do  more  than  to  recognize  the  right  of  the 
military  authorities  in  time  of  war,  within  the  areas  affected 
by  military  operations  or  where  martial  law  was  controlling, 
or  where  civil  authority  was  either  totally  suspended  or 
obstructed,  to  deal  with  the  crimes  specified."1  This  ques- 
tion was  left  unsettled,  but  in  Kahn  v.  Anderson2  the  right 
of  a  military  tribunal  to  try  a  person  subject  to  military  law 
for  murder  in  time  of  war  was  upheld,  the  court  merely  say- 
ing that  in  the  previous  case  "the  question  here  raised  was 
expressly  reserved  from  decision."  It  is  believed,  however, 
that  the  decision  of  a  District  Court  that  in  time  of  war  the 
military  tribunals  have  a  right  superior  to  that  of  the  civil 
tribunals  to  try  members  of  the  military  forces,  and  that  a 
soldier  under  indictment  in  a  state  court  should  be  taken 
upon  demand  from  the  state  authorities  by  writ  of  habeas 
corpus  and  surrendered  to  the  military  authorities,  is  an 
incorrect  interpretation  and  application  of  the  articles  of 
war.  By  a  provision  added  to  the  articles  of  war  in  1916  a 
civil  or  criminal  action  commenced  against  an  officer  or 
soldier  in  a  state  court  on  account  of  any  act  done  under 
color  of  his  office  or  status,  or  in  respect  of  which  he  claims 
any  authority  under  a  law  of  the  United  States  respecting 
the  military  forces,  or  under  the  laws  of  war,  may  be  removed 
into  and  tried  in  a  District  Court  of  the  United  States  in  the 
district  where  the  proceedings  are  pending.3 

§99.  Unusual  Powers  in  Time  of  War.  Very  extensive 
and  important  powers  may  be  exercised  by  the  federal 
government  in  time  of  war  which  it  could  not  exercise  in 
time  of  peace,  but  this  is  not  because  in  war  time  the  Con- 
stitution is  suspended.  "The  war  power  of  the  United 
States,  like  its  other  powers  and  like  the  police  power  of  the. 

1  Caldwell  /  Parker  (1920)  252  U.  S.  376,  387. 

3  (192 1 )  255  U.  S.  i ,  9.  It  was  also  held  in  this  case  that  war  had  not 
come  to  an  end  by  the  signing  of  the  armistice,  there  having  been  no 
treaty  or  declaration  of  peace. 

3  Art.  117. 


268       THE  AMERICAN  CONSTITUTION       §  99 

States,  is  subject  to  applicable  constitutional  limitations."1 
Yet  the  application  of  the  constitutional  guaranties  may  be 
quite  different  in  times  of  war  and  peace. 2  Under  the  war 
power  property  rights  may  be  affected  in  ways  which  would 
not  constitute  due  process  in  times  of  peace,  but  if  such 
legislation  is  "necessary  and  proper  for  carrying  into  execu- 
tion" the  war  power,  it  for  that  reason  constitutes  due  pro- 
cess in  time  of  war.  For  example  take  the  legislation  by 
which  the  national  government  took  over  entire  control  of 
the  railroads  of  the  country,3  and  of  the  telegraph  lines4; 
also  the  legislation  regulating  the  price  of  fuel,5  enforcing 
nation-wide  prohibition  before  the  Eighteenth  Amend- 
ment6 and  providing  for  the  commandeering  of  ships,7  and 
of  the  output  of  factories.8  But  in  United  States  v.  Cohen 
Grocery  Company9  it  was  held  that  the  Food  Control  Act, 
by  imposing  fine  or  imprisonment  upon  any  person  making 
"any  unjust  or  unreasonable  rate  or  charge  in  handling  or 
dealing  in  or  with  any  necessarjV  deprived  persons  of  their 
liberty  or  property  without  due  process,  contrary  to  the 
Fifth  Amendment,  since  the  statute  set  up  no  ascertainable 
standard  of  guilt.  The  right  of  the  government  to  take  over 
the  property  belonging  to  alien  enemies  was  thought  to  be 
so  clear  that  the  Supreme  Court  stated  the  proposition  as 

1  Hamilton  v.  Kentucky  Distilleries  Co.  (1919)  251  U.  S.  146,  156. 
And  see  Ex  parte  Milligan  (1866)  4  Wallace  2;  United  States  v.  Cohen 
Grocery  Co.  (1921)  255  U.  S.  81,  88. 

aSee  C.  H.  Hough,  "Law  in  War  Time — 1917,"  31  Harv.  L.  Rev., 
692;  E.  Wambaugh,  "War  Emergency  Legislation,  "30  Harv.  L.  Rev., 
663. 

s  Northern  Pac.  Ry.  Co.  v.  North  Dakota  (1919)  250  U.  S.  135.  In 
peace  time  the  war  power  has  been  relied  on  as  one  of  the  grounds  for 
justifying  the  federal  government  in  authorizing  the  construction  of 
national  highways.  Pacific  R.  R.  Removal  Cases  (1885)  115  U.  S.  I; 
Wilson  v.  Shaw  (1907)  204  U.  S.  24,  33. 

4  Dakota  Cent.  Tel.  Co.  v.  South  Dakota  (1919)  250  U.  S.  163. 

s  United  States  v.  Pennsylvania  Cent.  Coal  Co.  (1918)  256  Fed.  703. 

6  Hamilton  v.  Kentucky  Distilleries  Co.  (1919)  251  U.  S.  146. 

7  The  Lake  Monroe  (1919)  250  U.  S.  246. 

8  Moore  &  Tierney  v.  Roxford  Knitting  Co.  (1918)  250  Fed.  276. 

9  (1921)  255  U.S.  81. 


§  99  WAR  POWERS  269 

one  which  needed  no  discussion.1  A  military  officer  may, 
in  cases  where  there  is  ''immediate  and  impending"  danger, 
destroy  property  to  prevent  its  falling  into  the  hands  of  the 
enemy,  or  may  take  it  for  use  in  military  operations,  and 
will  not  thereby  become  a  trespasser.  But  if  the  officer 
oversteps  these  bounds  he  becomes  a  trespasser  and  is 
liable  to  the  person  injured.2  When  property  is  taken  or 
destroyed  in  order  to  meet  such  an  immediate  and  impend- 
ing danger  there  is  a  duty  upon  the  government  to  make 
compensation, 3  but  whether  this  duty  is  one  which  can  be 
enforced  before  the  Court  of  Claims,  or  must  be  met  by 
congressional  action,  depends  upon  the  authority  which  has 
been  given  to  that  court. 4  Injury  to  property,  however,  as 
the  result  of  operations  in  the  field  do  not  impose  upon  the 
government  a  duty  of  compensation.  When  compensation 
is  made  in  such  cases  it  is  in  the  nature  of  a  bounty  rather 
than  the  payment  of  an  obligation. s 

If  congressional  legislation  is  reasonably  related  to  the 
successful  prosecution  of  a  war  which  is  in  progress,  so  that  it 
is  "necessary  and  proper  for  carrying  into  execution"  the 
war  power,  under  the  liberal  construction  given  to  that 
clause,6  it  is  no  ground  for  condemnation  that  it  covers  a 
field  which  is  ordinarily  within  the  police  power  of  the 
States,  or  even  that  the  motive  in  passing  it  may  have  been 
to  improve  moral  conditions.  Both  of  these  objections 
have,  as  we  have  seen,  been  made  to  legislation  under  the 
commerce  clause  without  success.7  The  Federal  Control 
Act8  passed  during  the  World  War  gave  to  the  federal 
government  power  to  fix  both  interstate  and  intrastate 
rates  of  railroads,  and  the  Supreme  Court  of  the  United 

1  Central  Trust  Co.  v.  Garvan  (1921)  254  U.  S.  554. 
3  Mitchell  v.  Harmony  (1851)  13  Howard  115. 

3  Ibid.;  United  States  v.  Russell  (1871)  13  Wallace  623;  United  States 
v.  Pacific  R.  R.  (1887)  120  U.  S.  227,  239. 

*  United  States  v.  Russell  (1871)  13  Wallace  623. 

s  United  States  v.  Pacific  R.  R.  (1887)  120  U.  S.  227. 

6  See  sec..  59. 

'See  sec.  91. 

8  Act  of  March  21,  1918,  40  Stat.  451. 


270       THE  AMERICAN  CONSTITUTION      §  99 

States  in  dealing  with  the  statute  assumed  without  argu- 
ment that  this  was  a  legitimate  exercise  of  the  war  power. 
In  fact  those  attacking  the  federal  regulation  of  intrastate 
rates  did  not  claim  that  such  regulation  would  be  uncon- 
stitutional, but  asserted  that  an  intention  to  take  from  the 
States, the  power  to  regulate  intrastate  rates  was  not  evident 
from  the  language  of  the  statute.  The  court,  however,  held 
otherwise.1  In  upholding  the  War-Time  Prohibition  Act,2 
passed  during  the  World  War  and  before  the  Eighteenth 
Amendment  was  adopted,  the  Supreme  Court  said3: 

"That  the  United  States  lacks  the  police  power,  and 
that  this  was  reserved  to  the  States  by  the  Tenth  Amend- 
ment, is  true.  But  it  is  none  the  less  true  that  when  the 
United  States  exerts  any  of  the  powers  conferred  upon  it 
by  the  Constitution,  no  valid  objection  can  be  based  upon 
the  fact  that  such  exercise  may  be  attended  by  the  same 
incidents  which  attend  the  exercise  by  a  State  of  its 
police  power,  or  that  it  may  tend  to  accomplish  a  similar 
purpose." 

On  the  same  principle  it  was  held  constitutional  for  Con- 
gress to  authorize  the  Secretary  of  War  to  make  regulations 
to  prevent  the  establishment  of  disorderly  houses  within 
such  distance  of  camps  as  he  should  think  needful.4 

We  deal  more  fully  in  a  later  chapter  with  the  guaranty  of 
freedom  of  speech  and  of  the  press  contained  in  the  First 
Amendment.5 

One  of  the  most  important  bulwarks  of  liberty  is  the  writ 
of  habeas  corpus  and  this  is  expressly  preserved  by  the  Con- 
stitution, which  declares  that  "the  privilege  of  the  writ  of 
habeas  corpus  shall  not  be  suspended."  But  there  is  im- 
mediately added  the  proviso,  "unless  when  in  cases  of  rebel- 

1  Northern  Pac.  Ry.  Co.  v.  North  Dakota  (1919)  250  U.  S.  135. 

2  Act  of  Nov.  21,  1918,  40  Stat.  1046. 

a  Hamilton  v.  Kentucky  Distilleries  Co.  (1919)  251  U.  S.  146,  156. 
'United  States  v.  Casey  (1918)  247  Fed.  362;  Pappens  v.  United 
States  (1918)  252  Fed.  55;  McKinley  v.  United  States  (1919)  249  U.  S. 

397- 

«  Chap.  13. 


§  99  WAR  POWERS  271 

lion  or  invasion  the  public  safety  may  require  it."1  This 
provision  being  contained  in  the  article  dealing  with  the 
national  legislature,  it  is  reasonable  to  presume  that  the 
right  to  suspend  the  use  of  the  writ  was  intended  to  be 
vested  in  Congress.  Lincoln  under  the  advice  of  his  at- 
torney-general suspended  the  privilege  of  the  writ  during  the 
Civil  War  by  executive  order.  Chief  Justice  Taney  ex-  / 
pressed  the  opinion  that  this  was  beyond  the  power  of  the 
President,  and  his  view  has  been  generally  accepted  as 
correct,  although  at  the  time  that  Lincoln  acted  the  con- 
trary view  had  its  strong  supporters.2 

1  Art.  I,  sec.  9,  par.  2. 

2  Ex  parte  Merryman  (1861)  Fed.  Cas.  No.  9,  487  (see  also  Ex  parts 
Benedict  (1862)  Fed.  Cas.  No.  I,  292);  Story  on  the  Constitution  (5th 
ed.)  sec.  1342  n.;  Willoughby  on  the  Constitution,  sec.  738,  and  articles 
there  cited. 


CHAPTER  X 

FEDERAL  TERRITORY,  ADMISSION  OF  STATES  AND  STATUS  OF 

INDIANS 

§100.  General  Power  to  Acquire  Territory.  At  the  time  of 
the  Revolution  several  of  the  States,  and  particularly  Vir- 
ginia, claimed  vast  and  sparsely  settled  territories  extending 
west  to  the  Mississippi.  As  the  war  progressed  and  the  war 
debts  increased  this  situation  caused  jealousy  and  appre- 
hension on  the  part  of  those  States  which  had  no  claims  to 
such  territories,  for  they  feared  that  when  the  war  was  over 
these  territories  which  they  had  helped  to  wrest  from  Great 
Britain  would  be  sold  by  the  States  which  claimed  them  to 
pay  their  debts,  while  the  States  less  favorably  situated  in 
this  regard  would  be  left  to  pay  their  war  debts  by  means  of 
taxation. 

In  1777  Articles  of  Confederation  were  submitted  to  the 
States  by  the  Continental  Congress.  While  the  matter  was 
before  Congress  it  had  been  proposed  that  the  Articles  of 
Confederation  contain  a  provision  giving  to  Congress  the 
right  to  fix  the  western  boundaries  of  the  States,  and  to 
establish  in  the  territory  outside  of  such  boundaries  new 
States  from  time  to  time,  but  this  proposal  was  defeated. 
The  fact  that  the  Articles  of  Confederation  contained  no 
such  provision,  coupled  with  the  fears  of  which  we  have 
already  spoken,  caused  such  States  as  Maryland,  Delaware, 
and  New  Jersey  to  hesitate  to  ratify  the  Articles.  However, 
New  Jersey  ratified  in  1778  in  the  hope  and  the  belief  that 
the  inequality  of  which  she  complained  would  be  later 
removed,  and  Delaware  followed  her  example  in  1779.  But 
Maryland  still  held  back.  At  this  juncture  New  York,  in 
1780,  in  order  to  lead  the  way  in  breaking  the  threatened 
deadlock,  agreed  to  settle  the  western  boundary  of  the 

272 


§  ioo  FEDERAL  TERRITORY  273 

State  and  to  cede  the  territory  beyond  for  the  benefit  of 
those  States  which  came  into  the  confederation,  the  land 
to  be  disposed  of  for  the  common  benefit  and  the  territory 
to  be  eventually  formed  into  new  States.  Congress  there- 
upon urged  all  of  the  other  States  claiming  western  lands  to 
follow  New  York's  example,  and  at  the  same  time  urged 
upon  Maryland  the  ratification  of  the  Articles  of  Confedera- 
tion. New  York's  action  and  the  counsel  of  Congress  bore 
fruit.  The  next  year  Maryland  ratified  the  Articles,  and 
this  was  followed  a  month  later  by  the  first  move  on  the  part 
of  Virginia  towards  the  cession  of  her  vast  western  territory 
to  the  Confederation,  though  the  cession  was  not  completed 
until  1784.  The  examples  of  New  York  and  Virginia  were 
followed  by  Massachusetts  in  1785,  and  by  Connecticut  and 
South  Carolina  in  I786.1 

As  a  result  of  these  cessions  Congress  proceeded  to  take 
over  the  control  of  the  great  western  territory  and  to  pro- 
vide for  its  government,  although  not  only  was  there  no 
power  of  this  kind  expressly  delegated  to  it  in  the  Articles 
of  Confederation,  but,  as  we  have  seen,  a  provision  looking 
to  that  end  was  suggested  and  failed  of  incorporation. 
Madison,  in  speaking  in  the  Federalist2  of  the  powers  exer- 
cised over  the  territory  ceded,  said: 

"I  mean  not  by  anything  here  said  to  throw  censure 
on  the  measures  which  have  been  pursued  by  Congress. 
I  am  sensible  they  could  not  have  done  otherwise.  The 
public  interest,  the  necessity  of  the  case,  imposed  upon 
them  the  task  of  overleaping  their  constitutional  limits. 
But  is  not  the  fact  an  alarming  proof  of  the  danger  result- 
ing from  a  government  which  does  not  possess  regular 
powers  commensurate  to  its  objects?  A  dissolution  or 
usurpation  is  the  dreadful  dilemma  to  which  it  is  con- 
tinually exposed." 

It  has  been  urged,  in  opposition  to  so  sweeping  an  assertion 
of  usurpation,  that,  although  Congress  had  no  power  by 

1  See  Curtis's  History  of  the  Constitution,  vol.  i,  pp.  131  to  138,  291  to 
301.  'No.  38- 

18 


274       THE  AMERICAN  CONSTITUTION     §  100 

force  of  the  Articles  of  Confederation  to  take  over  and  gov- 
ern this  western  territory,  the  acceptance  of  the  cessions  by 
Congress,  in  which  each  State  was  directly  represented, 
constituted  an  implied  grant  of  further  power  commensur- 
ate with  the  duties  imposed  upon  it.1  And  no  objection 
having  been  made  by  the  States  to  the  action  of  their  dele- 
gates in  this  regard  the  implication  of  a  further  grant  would 
seem  to  be  well  founded. 

The  Constitution  provides  that  "the  Congress  shall  have 
power  to  dispose  of  and  make  all  needful  rules  and  regula- 
tions respecting  the  territory  or  other  property  belonging 
to  the  United  States ;  and  nothing  in  this  Constitution  shall  be 
so  construed  as  to  prejudice  any  claims  of  the  United  States 
or  of  any  particular  State. 2  This  paragraph  clearly  recognized 
the  title  of  the  United  States  to  the  territory  already  ceded 
to  it,  and  the  fact  that  it  had  claims  to  other  territory  which 
might  in  the  future  result  in  such  territory's  coming  under 
its  control.  There  seems,  therefore,  no  ground  to  doubt  that 
the  federal  government  had  a  constitutional  right  to  accept  the 
cession  of  territory  made  to  it  by  North  Carolina  in  1 790  and  by 
Georgia  in  1802  and  these  cessions  have  never  been  called  in 
question.  But  when  Jefferson  had  an  opportunity  in  1803  to 
purchase  from  France  the  great  Louisiana  Territory  he  was 
very  dubious  of  the  constitutional  right  of  the  national 
government  to  enlarge  its  boundaries.  Story  points  out  the 
dilemma  in  which  Jefferson  as  a  strict  constructionist  was 
put  when  it  was  clear  that  only  by  a  liberal  construction 
could  the  Constitution  be  made  to  justify  action  which 
seemed  to  be  demanded  for  the  future  development  of  the 
country,  and  which  because  of  political  conditions  in  Eur- 
ope could  not  be  delayed. 3  Finally,  to  a  letter  received  by 
him  from  his  Secretary  of  the  Treasury,  Albert  Gallatin, 
expressing  his  opinion  that  the  United  States  could  con- 

1  Curtis 's  History  of  the  Constitution,  vol.  i,  p.  294;  Dred  Scott  v. 
Sandford  (1856)  19  Howard  393,  434,  438. 

3  Art  IV,  sec.  2,  par.  2. 

s  Story  on  the  Constitution  (5th  ed.),  sec.  1286.  See  also  generally 
the  same  work  sees.  1282  to  1288,  and  Tiedeman,  The  Unwritten  Consti- 
tution of  the  United  States,  133. 


§  ioo  FEDERAL  TERRITORY  275 

stitutionally  acquire  territory,  and  that  this  could  be  done 
by  treaty,  and  that  after  its  acquisition  Congress  could 
admit  it  as  a  State  or  govern  it  as  a  territory, I  Jefferson  re- 
plied :  "You  are  right,  in  my  opinion.  There  is  no  constitu- 
tional difficulty  as  to  the  acquisition  of  territory,  and  whether, 
when  acquired,  it  may  be  taken  into  the  Union  by  the 
Constitution  as  it  now  stands  will  become  a  question  of 
expediency.  I  think  it  will  be  safer  not  to  permit  the  en- 
largement of  the  Union  but  by  amendment  of  the  Constitu- 
tion."2 After  his  correspondence  with  Gallatin  Jefferson's 
doubt  seems  not  to  have  been  as  to  the  power  of  the  United 
States  to  acquire  territory  but  as  to  the  incorporation  of  ac- 
quired territory  into  the  United  States,  and  it  does  not  seem 
to  have  been  so  much  as  to  whether  the  Constitution  might 
be  interpreted  to  include  this  latter  power,  as  whether 
it  was  wise  to  countenance  a  liberal  interpretation  of  the 
Constitution  in  order  to  make  incorporation  possible. 
Jefferson  prepared  two  drafts  of  amendments  to  meet  the 
difficulty  which  he  felt  with  regard  to  the  incorporation  of 
the  new  territory  into  the  United  States,3  but  the  treaty 
was  ratified  and  the  money  to  be  paid  to  France  appro- 
priated, and  no  action  was  taken  on  the  amendments. 

In  1819  Florida  was  by  treaty  ceded  by  Spain  to  the 
United  States.  In  1848  after  the  war  with  Mexico  a  large 
territory  including  California  and  New  Mexico  was  ceded 
to  the  United  States  by  treaty.  In  1867  Alaska  was  pur- 
chased from  Russia  and  ceded  by  treaty,  and  in  1899  by 
treaty  with  Great  Britain  and  Germany  territory  was 
obtained  in  the  Samoan  Islands.  After  the  war  with  Spain 
in  1898  Porto  Rico  and  the  Philippines  were  ceded  to  the 
United  States,  and  in  1904  the  United  States  obtained  by 

1  Writings  of  Albert  Gallatin,  vol.  i,  p.  113. 

3  Ibid.,  p.  115. 

3  They  provided  as  follows:  "The  province  of  Louisiana  is  incor- 
porated with  the  United  States  and  made  part  thereof, "  and  "  Louisiana, 
as  ceded  by  France  to  the  United  States,  is  made  a  part  of  the  United 
States.  Its  white  inhabitants  shall  be  citizens,  and  stand,  as  to  their 
rights  and  obligations,  on  the  same  footing  as  other  citizens  in  analogous 
situations^" 


276       THE  AMERICAN  CONSTITUTION     §  100 

treaty  with  the  Republic  of  Panama  the  strip  of  land 
through  which  the  Panama  Canal  has  been  constructed. 

In  1828  Chief  Justice  Marshall  said  in  connection  with  a 
question  arising  in  the  territory  of  Florida,  as  if  he  were 
speaking  of  a  matter  which  required  no  argument,  "the 
Constitution  confers  absolutely  on  the  government  of  the 
Union  the  powers  of  making  war,  and  of  making  treaties; 
consequently  that  government  possesses  the  power  of  ac- 
quiring territory,  either  by  conquest  or  by  treaty."1  Again 
in  Stewart  v.  Kahn2  the  Supreme  Court  said:  "The  war 
power  and  the  treaty-making  power  each  carries  with  it  the 
power  to  acquire  territory.  Louisiana,  Florida,  and  Alaska 
were  acquired  under  the  latter,  and  California  under  both." 
Though  in  the  Dred  Scott  case  the  Chief  Justice  took,  as  we 
shall  see,  a  narrow  view  of  the  powers  of  the  national  govern- 
ment to  govern  territories,  he  felt  no  doubt  that  such  terri- 
tories might  be  acquired.3  In  the  Insular  Cases4  the  power 
of  the  United  States  to  acquire  Porto  Rico  and  the  Philip- 
pines by  treaty  from  Spain  is  not  questioned,  the  only 
difference  of  opinion  being,  as  we  shall  see  later,  as  to  what 
the  constitutional  status  of  those  islands  was  after  the  ces- 
sion. Finally  in  Wilson  v.  Shaw,5  in  which  the  Panama 
Treaty  was  attacked,  the  court  said,  "it  is  too  late  in  the 
history  of  the  United  States  to  question  the  right  of  acquir- 
ing territory  by  treaty." 

It  seems  clear  that  the  national  government,  under  its 
power  to  do  all  that  is  necessary  and  proper  for  carrying 
into  execution  its  war  power,  may  take  possession  of  terri- 
tory belonging  to  the  enemy,  and  in  the  treaty  of  peace 
provide  for  the  cession  of  territory  to  the  United  States. 
Furthermore,  since  all  matters  of  international  relations  are 
put  under  the  exclusive  control  of  the  central  government, 

«  American  Ins.  Co.  v.  Canter  (1828)  I  Peters  511,  541. 

2  (1870)  ii  Wallace  493,  507.    See  also  United  States  v.  Huckabee 
(1872)  16  Wallace  414,  434. 

3  Dred  Scott  v.  Sandford  (1856)  19  Howard  393,  447. 

*  See  for  example  DeLima  v.  Bidwell  (1901)  182  U.  S.  i;  Downes  v 
Bidwell  (1901)  182  U.  S.  244. 
s  (1907)  204  U.  S.  24,  32. 


§  ioo  FEDERAL  TERRITORY  277 

and  the  cession  of  territory  by  treaty  is  a  well-recognized 
subject  of  treaty  contracts  between  nations,  it  would  also 
seem  evident  that  the  United  States  government  has  the 
power  which  it  has  exercised,  to  provide  for  the  acquisition 
of  territory  by  a  treaty  of  purchase. 

It  is  undoubtedly  true  that  it  was  intended  that  all  of  the 
territory  ceded  by  the  States  to  the  central  government 
should  ultimately  be  erected  into  States  and  both  the  treaty 
ceding  Louisiana  and  that  ceding  Florida  provided  that  the 
inhabitants  of  those  territories  should  eventually  "be  in- 
corporated into  the  Union  of  the  United  States."  It  is, 
therefore,  sometimes  suggested  that  the  power  to  acquire 
territory  rests  upon  the  right  to  admit  new  States,  and  that 
territory  can  only  be  constitutionally  acquired  which  is  to 
be  erected  into  States. *  In  answer  to  the  first  suggestion  it 
may  be  said  that  the  power  to  acquire  territory  can  with  at 
least  as  much  reason  be  put  upon  the  broader  basis  of  the 
treaty  power.  Chief  Justice  Taney  seems  to  have  thought, 
when  he  rendered  his  decision  in  the  Dred  Scott  case,2  that 
the  federal  government  only  had  a  right  to  acquire  territory 
in  order  to  be  made  later  into  States,  but  there  is  certainly 
no  such  limitation  to  be  found  in  the  Constitution,  and 
where  the  central  government  exercises  a  power  which  is 
granted  to  it  the  Supreme  Court  has  frequently  declared 
that  it  will  not  look  to  the  object  with  which  that  power  is 
exercised.3  Neither  Alaska,  Samoa,  Hawaii,  Porto  Rico, 
the  Philippines  nor  the  strip  of  land  at  Panama  were  ac- 
quired for  the  purpose  of  erecting  them  into  States,  and  yet 
all  of  these  acquisitions  have  been  upheld  either  expressly, 
or  by  implication  in  countenancing  legislation  applying  to 
them. 

Texas,  having  gained  its  independence  from  Mexico,  and 
having  adopted  a  constitution  and  established  an  independ- 
ent government  in  1836,  was  anxious  to  enter  the  American 

1  Willoughby  on  the  Constitution,  sees.  148  and  149. 
a  Scott  v.  Sandford  (1856)  19  Howard  393,  447. 
3  See  as  to  the  taxing  power  sec.  78,  as  to  the  commerce  power  sec. 
91,  and  as  to  the  war  power  sec.  99. 


278       THE  AMERICAN  CONSTITUTION     §  100 

Union,  and  the  southern  States  were  equally  anxious  to  have 
it  admitted  so  as  to  add  to  the  strength  of  the  slave  States. 
An  attempt  was  made  to  annex  the  Republic  of  Texas  by 
treaty,  but  because  of  the  opposition  from  the  North  the 
necessary  two  thirds  vote  could  not  be  obtained  in  the  Sen- 
ate. In  this  situation,  in  order  to  give  effect  to  the  desire  of 
the  majority  in  Congress,  a  joint  resolution  was  passed  and 
signed  by  the  President  declaring  the  consent  of  Congress 
that  the  territory  belonging  to  the  Republic  of  Texas  should 
be  erected  into  a  State  with  a  republican  form  of  govern- 
ment to  be  adopted  by  a  constitutional  convention,  "in 
order  that  the  same  may  be  admitted  as  one  of  the  States 
of  the  Union."  After  Texas  had  acted  as  thus  provided 
Congress  by  another  joint  resolution  declared  that  State  to 
be  one  of  the  States  of  the  Union.  The  constitutionality  of 
this  action  has  never  been  directly  attacked,  or  directly 
passed  upon  by  the  Supreme  Court,  but  it  has  been  re- 
peatedly admitted  tacitly  when  federal  statutes  have  been 
held  applicable  in  Texas  and  when  the  statutes  of  Texas 
have  been  reviewed  by  the  Supreme  Court.  Although,  when 
the  provision  was  inserted  in  the  Constitution  that  "New 
States  may  be  admitted  by  Congress  into  this  Union,"1 
the  drafters  probably  had  only  in  mind  the  creation  of  new 
States  out  of  territory  already  within  the  geographical 
boundaries  of  the  Union,  no  such  limitation  was  put  upon 
Congress  by  that  instrument,  and  Congress  would  seem  to 
have  been  clearly  within  its  constitutional  powers  in  taking 
Texas  into  the  Union  by  the  method  which  was  adopted. 

In  1893  a  treaty  for  the  annexation  of  Hawaii  was  pre- 
sented to  the  Senate  by  President  Harrison,  but  upon  the 
accession  of  President  Cleveland  the  treaty  was  withdrawn. 
In  1898,  however,  Hawaii  was  annexed  by  joint  resolution 
signed  by  the  President.  This  action  was  justified  by  the 
Senate  Committee  on  Foreign  Relations  in  a  report  made  by 
it2  upon  the  precedent  established  in  the  case  of  the  annexa- 
tion of  Texas,  and  upon  the  ground  that  the  Hawaiian 

1  Art.  IV,  sec.  3,  par.  i. 

3  Senate  Report  68 1,  55th  Cong.  2d  Sess. 


§  ioo  FEDERAL  TERRITORY  279 

government  having  agreed  to  the  terms  of  the  treaty  nego- 
tiated for  its  annexation,  Congress  might  legislate  on  the 
basis  of  such  consent.  The  precedent  in  the  case  of  Texas 
does  not  seem  wholly  controlling  authority  for  the  action  of 
Congress  with  regard  to  Hawaii,  for,  as  has  been  pointed 
out,  Texas  was  admitted  as  a  State,  and  Congress  is  express- 
ly given  authority  in  the  Constitution  to  admit  new  States. 
However,  when  no  further  diplomatic  dealings  are  neces- 
sary, it  would  seem  to  be  within  the  power  of  Congress  to 
take  action  by  joint  resolution  for  the  annexation  of  terri- 
tory under  its  power,  to  do  all  that  is  necessary  or  proper  to 
carry  into  execution  its  powers  over  foreign  commerce,  and 
its  powers  to  make  war  and  consequently  to  make  proper 
provision  for  national  protection. 

The  power  of  annexation  clearly  vests  exclusively  in  the 
national  government.  Since  the  President  is  the  proper 
channel  of  communication  and  negotiation  with  foreign 
states,  and  since,  when  action  as  the  result  of  such  negotia- 
tions is  required,  it  usually  takes  the  form  of  a  treaty, 
which  by  the  Constitution  becomes  a  part  of  the  supreme 
law  of  the  land,  it  is  usual  for  annexation  to  result  from 
treaties.  The  fact,  however,  that  a  result  may  be  accom- 
plished by  treaty  does  not  mean  that  the  subject  matter  is 
outside  of  the  scope  of  congressional  action.1  So  when 
negotiations  have  been  completed  looking  to  annexation 
there  seems  to  be  no  constitutional  reason  to  deny  to  Con- 
gress the  right  to  annex  the  territory  in  question.  It  would 
also  seem  that  where  territory  has  been  actually  conquered 
it  might  be  annexed  by  congressional  action,  instead  of  by 
compelling  the  defeated  state  to  go  through  the  form  of 
transferring  it.  This  of  course  would  be  an  unusual  method 
to  adopt  unless  the  opposing  government  were  so  completely 
destroyed  as  to  leave  no  power  with  which  a  treaty  could  be 
made,  in  which  case  annexation  could  only  be  accomplished 
by  congressional  action.2  It  would  also  seem  possible  for 

1  See  sec.  34. 

2  See  the  remarks  in  United  States  v.  Huckabee  (1872)  16  Wallace 
4H.  434- 


280       THE  AMERICAN  CONSTITUTION     §  100 

Congress  to  provide  for  the  annexation  of  certain  territory 
in  the  event  that  negotiations  were  brought  to  a  satisfactory 
conclusion  by  the  President.  For  other  purposes  such  con- 
ditional action  has  been  taken  by  Congress, J  and  there  seems 
to  be  no  constitutional  reason  why  it  could  not  be  taken  in 
this  field. 

In  1823  Chief  Justice  Marshall  said,  in  discussing  the 
acquisition  of  the  American  colonies  by  the  British  Crown: 

"If  the  discovery  be  made,  and  possession  of  the  country 
be  taken,  under  the  authority  of  an  existing  government, 
which  is  acknowledged  by  the  emigrants,  it  is  supposed  to 
be  equally  well  settled,  that  the  discovery  is  made  for 
the  whole  nation,  that  the  country  becomes  a  part  of  the 
nation,  and  that  the  vacant  soil  is  to  be  disposed  of  by 
that  organ  of  the  government  which  has  the  constitutional 
power  to  dispose  of  the  national  domains,  by  that  organ 
in  which  all  vacant  territory  is  vested  by  law."2 

In  1856  Congress  passed  an  act  entitled  "An  Act  to  author- 
ize Protection  to  be  given  to  Citizens  of  the  United  States 
who  may  discover  Deposits  of  Guano."3  It  provided  that 
when  any  citizen  of  the  United  States  shall 

"discover  a  deposit  of  guano  on  any  island,  rock  or  key, 
not  within  the  lawful  jurisdiction  of  any  other  govern- 
ment, and  not  occupied  by  the  citizens  of  any  other 
government,  and  shall  take  peaceable  possession  thereof, 
and  occupy  the  same,  said  island,  rock  or  key  may,  at  the 
discretion  of  the  President  of  the  United  States,  be  con- 
sidered as  appertaining  to  the  United  States." 

The  act  also  provided  that  any  crime  committed  in  such  a 
place  shall  be  punished  according  to  the  laws  of  the  United 
States  for  the  punishment  of  crimes  committed  on  the  high 

1  See  sec.  35. 

2  Johnson  v.  M'Intosh  (1823)  8  Wheaton  543,  595.    So  in  Martin  v. 
Waddell  (1842)  16  Peters  367,  409,  the  court  said:  "The  English  posses- 
sions in  America  were  not  claimed  by  right  of  conquest  but  by  right  of 
discovery." 

3  Act  of  Aug.  1 8,  1856,  ii  Stat.  119. 


§  ioo  FEDERAL  TERRITORY  281 

seas.  A  certain  island  called  Navassa  in  the  Caribbean  Sea 
was  found  to  have  upon  it  a  deposit  of  guano,  was  taken 
possession  of  as  provided  in  the  statute,  and  was  declared 
by  the  President  to  appertain  to  the  United  States.  One 
Jones  having  been  put  on  trial  for  a  murder  committed 
upon  the  island,  and  having  been  found  guilty,  moved  in 
arrest  of  judgment  that  the  statute  in  question  was  uncon- 
stitutional and  void.  The  motion  being  overruled  the  de- 
fendant sued  out  a  writ  of  error  to  the  Supreme  Court.1 
The  court,  however,  held  the  statute  constitutional,  declar- 
ing2: 

"By  the  law  of  nations,  recognized  by  all  civilized  states, 
dominion  of  new  territory  may  be  acquired  by  discovery 
and  occupation,  as  well  as  by  cession  and  conquest;  and 
when  citizens  or  subjects  of  one  nation,  in  its  name,  and 
by  its  authority  or  with  its  assent,  take  and  hold  actual, 
continuous  and  useful  possession,  (although  only  for  the 
purpose  of  carrying  on  a  particular  business,  such  as 
catching  and  curing  fish,  or  working  mines,)  of  territory 
unoccupied  by  any  other  government  or  its  citizens, 
the  nation  to  which  they  belong  may  exercise  such 
jurisdiction  and  for  such  period  as  it  sees  fit  over 
territory  so  acquired.  This  principle  affords  ample 
warrant  for  the  legislation  of  Congress  concerning  guano 
islands."3 

As  the  court  points  out,  the  annexation  of  new  territory  to 
that  already  possessed  by  a  state  by  means  of  discovery  and 
occupation  has  been  recognized  and  acted  upon  for  centur- 
ies. All  that  is  necessary  with  regard  to  territory  not  under 
the  jurisdiction  of  any  other  state  is  that  the  occupation 
shall  be  authorized  or  ratified  by  the  state  upon  whose  behalf 

1  Jones  v.  United  States  (1890)  137  U.  S.  202. 

3  Ibid.,  212. 

3  The  court  cites  Vattel,  lib.  I,  c.  18;  Wheaton  on  International  Law 
(8th  ed.),  sees.  161,  165,  176,  note  104;  Halleck  on  International  Law,  c. 
6,  sees.  7,  15;  I.  Phillimore  on  International  Law  (3d  ed.),  sees.  227,  229, 
230,  232,  242;  /  Calvo  Droit  International  (4th  ed.),  sees.  266,  277, 
300;  Whiton  v.  Albany  Ins.  Co.  (1871)  109  Mass.  24,  31. 


282       THE  AMERICAN  CONSTITUTION     §  101 

it  is  made.  This  consent  may  take  the  form  of  a  treaty  in 
which  other  nations  recognize  the  validity  of  the  right 
claimed,  but  such  consent  may  also  be  given  by  Congress 
either  in  the  form  of  a  joint  resolution  or  in  the  form  of  a 
statute,  as  in  the  instant  case.1  In  Shively  v.  Bowlby2  the 
Supreme  Court  said: 

"The  title  of  the  United  States  to  Oregon  was  founded 
upon  original  discovery  and  actual  settlement  by  citizens 
of  the  United  States  authorized  or  approved  by  the 
government  of  the  United  States;  as  well  as  upon  the 
cession  of  the  Louisiana  Territory  by  France  in  the  treaty 
of  1803,  and  the  renunciation  of  the  claims  of  Spain  in  the 
treaty  of  1819.  ...  So  far  as  the  title  of  the  United 
States  was  derived  from  France  or  Spain,  it  stood  as  in 
other  territories  acquired  by  treaty.  The  independent 
title  based  upon  discovery  and  settlement  was  equally 
absolute." 

§101.  Power  of  Congress  to  Govern  Territories.  As  we 
saw  in  the  last  preceding  section  Congress  was  not  given  by 
the  Articles  of  Confederation  any  express  power  to  hold 
territory.  Yet  Maryland  refused  for  several  years  to  ratify 
those  articles,  in  order  to  obtain  as  a  condition  precedent 
the  cession  of  the  western  territory  by  the  States  claiming  it 
to  the  United  States,  the  Continental  Congress  urged  the 
cession  of  such  territory,  and  the  States  in  question  did 
finally  cede  this  territory  for  the  benefit  of  the  States  as  a 
whole.  The  national  government  now  having  the  control  of 
this  territory  was  faced  with  the  problem  of  providing  for  its 
government  until  such  time  as  it  should  be  admitted  into  the 
Union.  In  1 784  Congress  passed  a  resolve  providing  for  the 
establishment  of  temporary  governments  by  the  inhabitants 
in  each  of  the  areas  intended  to  be  later  formed  into  States, 
and  for  the  later  admission  of  these  States  into  the  Union. 

1  See  the  approval  of  the  case  just  discussed  and  of  the  principles 
enunciated  in  the  concurring  opinion  in  Downes  v.  Bidwell  (1901)  182 
U.  S.  244,  306. 

•(1894)  152  U.S.  1,50. 


§  ioi  FEDERAL  TERRITORY  283 

This,  however,  was  soon  seen  to  be  inadequate  because  of  the 
necessity  of  immediate  legislation  for  this  territory,  and  Con- 
gress, therefore,  in  1787  passed  the  Ordinance  for  the  Govern- 
ment of  the  Northwest  Territory.  The  details  of  the  provisions 
of  this  Ordinance  are  not  here  important,1  but  it  should  be 
noted  that  it  dealt  with  the  transfer  and  devolution  of  real 
property,  with  the  establishment  of  local  governments  with 
power  of  local  legislation,  that  it  prohibited  slavery  or  in- 
voluntary servitude  except  as  punishment  for  crime,  and 
that  it  contained  a  bill  of  rights  safeguarding  religious 
opinion,  the  writ  of  habeas  corpus,  jury  trial,  and  contract 
rights,  among  other  things.  Madison  in  the  Federalist2 
declared  that  Congress  had  in  this  legislation  "overleaped 
their  constitutional  limits"  because  they  had  not  been  in- 
vested with  powers  commensurate  with  their  responsibili- 
ties. At  least,  because  of  the  silence  of  the  Articles  of  Con- 
federation on  this  subject,  the  right  of  Congress  to  hold  and 
legislate  for  territory  was  in  doubt,  although  in  fact  such 
authority  would  seem  by  reasonable  implication  to  have 
been  conferred  by  the  acceptance  of  the  cessions  of  territory 
on  behalf  of  the  States  through  their  delegates  in  the  Con- 
tinental Congress.3 

This  was  the  situation  when  the  Constitution  was  drafted 
and  adopted.  In  that  instrument  it  is  provided  that  "  Con- 
gress shall  have  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other  prop- 
erty belonging  to1  the  United  States."4  The  first  Congress 
reenacted  the  Ordinance  for  the  Government  of  the  North- 
west Territory,  and  from  that  time  to  the  present  day  Con- 
gress has  continued  both  to  provide  for  local  government  in 
its  territories  and  to  legislate  directly  for  the  territories. 
Upon  what  basis  does  this  power  rest  ?  In  cases  arising  with 
regard  to  the  Territory  of  Orleans, 5  acquired  from  France  in 

rSee  the  outline  of  the  Ordinance  given  in  Curtis's  History  of  the 
Constitution,  vol.  i,  pp.  302  to  307.  *No.  38. 

*  Curtis's  History  of  the  Constitution,  vol.  i,  p.  294;  Dred  Scott  v.  Sand- 
ford  (1856)  19  Howard  393,  434,  438.  *  Art.  IV,  sec.  3,  par.  2. 

s  Sere  v.  Pitot  (1810)  6  Cranch  332,  336. 


284       THE  AMERICAN  CONSTITUTION     §  101 

1803,  and  the  Territory  of  Florida,1  acquired  from  Spain  in 
1819,  Chief  Justice  Marshall  declared  that  Congress  had 
authority  to  legislate  for  those  territories  under  its  power  to 
' '  make  all  needful  rules  and  regulations  respecting  the  terri- 
tory .  .  .  belonging  to  the  United  States."  The  authority 
to  govern  the  territory  acquired  from  Mexico  as  a  conse- 
quence of  the  Mexican  War  was  put  by  the  Supreme  Court 
on  the  same  ground  in  1853  in  the  case  of  Cross  v.  Harrison.2 
In  the  Dred  Scott  case3  Chief  Justice  Taney  in  speaking  for 
the  majority  of  the  court  expressed  the  opinion  that  the 
power  granted  to  Congress  by  the  Constitution  to  ' '  make  all 
needful  rules  and  regulations  respecting  territory  .  .  . 
belonging  to  the  United  States"  had  no  application  to  any 
territory  not  included  in  the  original  area  of  the  United 
States,  and,  therefore,  did  not  apply  to  the  territory  ac- 
quired from  Mexico.  Justice  Curtis  vigorously  dissented 
from  this  view,  holding  that  the  clause  above  quoted  is 
amply  sufficient  to  support  complete  power  in  Congress  to 
legislate  for  the  government  of  all  territories  which  may 
belong  to  the  United  States. 4  It  may  be  that  the  framers  of 
the  Constitution  had  only  in  mind  the  then  existing  western 
territory  of  the  United  States  when  they  drafted  this  clause, 
but  it  would  seem  that  they  used  language  sufficiently 
broad  to  grant  a  general  legislative  power  over  territories. 
Notwithstanding  the  opinion  of  the  Chief  Justice  in  the 
Dred  Scott  case,  the  Supreme  Court  has  since  held  that  the 
power  to  govern  territories  may  rest  upon  the  power  to  make 
all  needful  rules  and  regulations  for  them. s 

The  power  to  govern  the  territories  has,  however,  also 
been  put  upon  other  grounds.  In  Sere  v.  Pilot6  Chief  Justice 

1  American  Ins.  Co.  v.  Canter  (1828)  i  Peters  511,  542. 
a  1 6  Howard  164,  193. 

3  Dred  Scott  v.  Sandford  (1856)  19  Howard  393,  435  to  446. 

4  Ibid.t  604  et  seq. 

s  Mormon  Church  v.  United  States  (1890)  136  U.  S.  i,  42.  See  also 
McAllister  v.  United  States  (1891)  141  U.  S.  174,  180,  where  language 
to  this  effect  in  the  earlier  case  of  American  Ins.  Co.  v.  Canter  (1828) 
I  Peters  511,  542,  is  quoted  with  approval. 

6  (1810)  6  Cranch  332,  336. 


§  ioi  FEDERAL  TERRITORY  285 

Marshall  says,  "The  power  of  governing  and  of  legislating 
for  a  territory  is  the  inevitable  consequence  of  the  right  to 
acquire  and  hold  territory,"  and  in  American  Insurance 
Company  v.  Canter'1  the  same  judge  says, 

1 '  Perhaps  the  power  of  governing  a  territory  belonging  to 
the  United  States,  which  has  not,  by  becoming  a  State 
acquired  means  of  self-government,  may  result  necessarily 
from  the  facts,  that  it  is  not  within  the  jurisdiction  of  any 
particular  State,  and  is  within  the  power  and  jurisdiction 
of  the  United  States.  The  right  to  govern  may  be  the 
inevitable  consequence  of  the  right  to  acquire  territory." 

Chief  Justice  Taney  in  the  Dred  Scott  case, 2  although  he  denied 
that  the  constitutional  provision  with  regard  to  the  making 
of  needful  rules  and  regulations  for  the  territory  belonging 
to  the  United  States,  conferred  a  general  power  of  legis- 
lation for  territories  nevertheless  declared  that  it  is  not 
only  the  right  but  the  duty  of  Congress  to  pass  laws  and 
establish  government  for  territories  which  have  been  ac- 
quired— that  the  right  to  acquire  carries  with  it  this  right 
and  duty.  In  Mormon  Church  v.  United  States3  the  power  to 
legislate  for  the  territories  was  rested  upon  the  power  to 
acquire,  as  well  as  upon  the  constitutional  authorization  to 
make  rules  and  regulations.  In  the  later  cases  the  inclina- 
tion seems  to  be  to  rest  the  legislative  power  more  definitely 
upon  the  exclusiveness  of  control  and  the  power  of  acquisi- 
tion. In  one  case  it  is  said4 :  "By  the  Constitution,  as  is  now 
well  settled,  the  United  States,  having  rightfully  acquired 
the  territories,  and  being  the  only  government  which  can 
impose  laws  upon  them,  have  the  entire  dominion  and 
sovereignty,  ..."  In  DeLima  v.  Bidwell,5  one  of  the 
Insular  Cases,  and  a  case  involving  the  acquisition  and 

1  (1828)  i  Peters  511,  542.  It  will  be  remembered  that  in  both  of 
these  cases  the  power  had  also  been  rested  upon  the  express  provision  of 
the  Constitution  just  discussed. 

3  (1856)  19  Howard  393,  448. 

3  (1890)  136  U.  S.  i,  42. 

<  Shively  v.  Bowlby  (1894)  152  U.  S.  i,  48. 

<(i90i)  182  U.S.  1,196. 


286       THE  AMERICAN  CONSTITUTION     §  101 

status  of  Porto  Rico,  the  Supreme  Court  said  that  the 
authority  to  govern  territories  "arises,  not  necessarily  from 
the  territorial  clause  of  the  Constitution,  but  from  the 
necessities  of  the  case,  and  from  the  inability  of  the  States 
to  act  upon  the  subject."  Since,  as  we  have  seen  in  the 
next  preceding  section,  the  United  States  has  power  to  ac- 
quire territory,  and  since  it  has  under  the  Constitution 
power  to  make  all  laws  which  shall  be  necessary  and  proper 
to  carry  its  other  powers  into  execution,  it  would  seem  that, 
as  the  courts  have  said,  it  must  have  power  to  provide  for 
the  government  of  territory  acquired.  The  fact  that  the 
power  to  acquire  territory  is  itself  implied  instead  of  being 
express  should  make  no  difference. 

There  is  no  constitutional  division  of  powers  between  the 
federal  government  and  the  territories  as  there  is  between 
the  federal  government  and  the  States,  "Congress  in  the 
exercise  of  its  powers  in  the  organization  and  government 
of  the  territories  combining  the  powers  of  both  the  federal 
and  state  authorities."1  The  people  of  the  United  States 
have  supreme  power  over  territories  and  their  inhabitants, 
and  in  the  exercise  of  this  sovereign  dominion  they  are  repre- 
sented by  the  government  of  the  United  States  to  whom  that 
power  has  been  delegated.2  So  when  Congress  establishes 
courts  for  the  territories  it  does  so  under  its  power  to  govern 
the  territories  and  not  as  an  exercise  of  its  power  to  estab- 
lish lower  federal  courts  under  the  constitutional  provisions 
with  regard  to  the  federal  judiciary.3  Therefore,  the  con- 
stitutional provision  that  federal  judges  shall  hold  office 
during  good  behavior  does  not  apply  to  judges  of  the  terri- 
torial courts,  who  may  be  appointed  for  short  terms,  nor 
are  those  courts  vested  by  virtue  of  their  creation  with  the 
powers  given  by  the  Constitution  to  federal  courts.4 

It  is  a  thoroughly  established  principle  of  American  con- 
stitutional law  that  the  legislative  branch  of  the  government 

1  Benner  v.  Porter  (1850)  9  Howard  235,  242.     The  same  language  is 
used  in  Mormon  Church  v.  United  States  (1890)  136  U.  S.  I,  43. 
a  Murphy  v.  Ramsey  (1885)  114  U.  S.  15,  44.  3  Art.  III. 

4  American  Ins.  Co.  v.  Canter  (1828)  i  Peters  511,  545. 


§  ioi  FEDERAL  TERRITORY  287 

whether  state  or  federal,  cannot  delegate  its  essential  legis- 
lative functions  to  any  other  agency.  However,  an  ex- 
ception, equally  well  recognized,  allows  such  delegation  to 
municipal  corporations  with  regard  to  local  affairs.1  It  has 
been  the  practice  of  the  federal  government  beginning  with 
the  legislation  of  the  Continental  Congress  for  the  North- 
west Territory  and  coming  down  to  the  present  day,  to 
organize  territorial  governments  as  early  as  practicable,  and 
to  grant  to  them  the  widest  powers  of  legislation  with  regard 
to  territorial  affairs.2  This  right  of  delegation  seems  not  to 
have  been  questioned,  and  is  treated  by  the  Supreme  Court 
as  a  right  to  be  taken  for  granted. 

"  The  right  to  legislate  in  the  territories  is  conferred  under 
the  constitutional  authority  by  the  Congress  of  the  United 
States,  and  the  passage  of  a  territorial  law  is  the  exertion 
of  an  authority  exercised  under  the  United  States."3 

The  practice  has  been  to  grant  to  the  territories  legislative 
power  extending  "to  all  rightful  subjects  of  legislation  not 
inconsistent  with  the  Constitution  and  laws  of  the  United 
States."  Under  such  grants  the  territorial  legislatures  have 
been  held  to  have  authority  to  grant  legislative  divorces,4 
to  exclude  classes  of  persons  from  the  exercise  of  the  elective 
franchise  in  the  territories,5  and  to  adopt  criminal  codes.6 
This  is,  of  course,  quite  consistent  with  the  accepted  right 
of  States  to  delegate  legislative  power  to  municipalities,  and 
with  the  Anglo-Saxon  theory  of  local  self-government  which 
underlies  it.  But  Congress  is  no  more  concluded  by  its 
legislation  by  which  it  delegates  power  to  the  territories 
than  it  is  by  any  other  legislative  act. 

"The  organic  law  of  a  territory  takes  the  place  of  a  con- 
stitution as  the  fundamental  law  of  the  local  government. 

1  See  sec.  60. 

a  See  the  review  of  such  legislation  in  Clinton  v.  Englebrecht  (1871) 
13  Wallace  434,  441  to  445. 

3  McLean  v.  Denver  &  Rio  Grande  R.  R.  Co.  (1906)  203  U.  S.  38. 

<  Maynard  v.  Hill  (1888)  125  U.  S.  190. 

s  Davis  v.  Beason  (1890)  133  U.  S.  333. 

6  United  States  v.  Pridgeon  (1894)  153  U.  S.  48. 


288       THE  AMERICAN  CONSTITUTION     §  101 

It  is  obligatory  on  and  binds  the  territorial  authorities; 
but  Congress  is  supreme  .  .  .  Congress  may  not  only 
abrogate  laws  of  the  territorial  legislatures,  but  it  may 
itself  legislate  directly  for  the  local  government.  It  may 
make  a  void  act  of  the  territorial  legislature  valid,  and  a 
valid  act  void.  In  other  words  it  has  full  and  complete 
legislative  authority  over  the  peoples  of  the  territories 
and  all  the  departments  of  the  territorial  governments. 
It  may  do  for  the  territories  what  the  people,  under 
the  Constitution  of  the  United  States,  may  do  for  the 
States."1 

Under  the  constitutional  power  vested  in  Congress  to 
' '  dispose  of  and  make  all  needful  rules  and  regulations  re- 
specting the  territory  or  other  property  belonging  to  the 
United  States"2  it  has  been  declared  that  "with  respect  to 
the  public  domain,  the  Constitution  vests  in  Congress  the 
power  of  disposition  and  of  making  all  needful  rules  and 
regulations.  That  power  is  subject  to  no  limitations.  Con- 
gress has  the  absolute  right  to  prescribe  the  times,  the  con- 
ditions, and  the  mode  of  transferring  this  property,  or  any 
part  of  it.  ...  No  state  legislation  can  interfere  with 
this  right  or  embarrass  its  exercise."3  Acting  under  this 
power  Congress  passed  a  statute  which  provides  that  "no 
lands  acquired  under  the  provisions  of  this  act  shall  in  any 
event  become  liable  for  the  satisfaction  of  any  debt  or  debts 
contracted  prior  to  the  issuing  of  the  patent  therefore."4 
The  question  was  presented  to  the  Supreme  Court  in  Ruddy 

1  National  Bank  v.  Yankton  County  (1879)  IO1  U.  S.  129,  133.  See 
also  Murphy  i>.  Ramsey  (1885)  114  U.  S.  15,  44;  Mormon  Church  v. 
United  States  (1890)  136  U.  S.  i,  42.  In  most  of  the  territories  the 
common  law  is  declared  by  congressional  act  to  be  in  force  so  far  as 
applicable  to  their  conditions  and  not  inconsistent  with  congressional  or 
local  legislation.  Montana  M.  Co.  v.  St.  Louis  M.  Co.  (1907)  204  U.  S. 
204,  217.  In  Porto  Rico  and  the  Philippines,  however,  the  civil  law  is 
the  basis  of  the  local  jurisprudence.  Alzua  v.  Johnson  (1912)  21  Philip- 
pine 308;  People  v.  Llouger  (1908)  14  Porto  Rico  534. 

a  Art.  IV,  sec.  3,  par.  2. 

3  Gibson  v.  Chouteau  (1871)  13  Wallace  92,  99. 

4  U.  S.  Rev.  Stat.  sec.  2296. 


§  102  FEDERAL  TERRITORY  289 

v.  Rossi1  as  to  whether  Congress  has  the  power,  upon  con- 
veying in  fee  simple  property  which  is  located  within  a  State, 
to  preserve  it  free  from  previously  contracted  debts.  State 
courts  had  uniformly  upheld  the  federal  legislation.2  The 
statute  was  attacked  as  attempting  to  deprive  the  States 
of  a  part  of  their  sovereign  power.  But  it  may  fairly  be 
argued  that  the  States  in  surrendering  to  Congress  the  power 
to  dispose  of  the  public  lands  and  to  make  all  needful  rules 
and  regulations  respecting  them,  divested  themselves  of  so 
much  of  their  sovereignty  as  would  interfere  with  the  ade- 
quate fulfillment  of  the  power  conferred,  that  in  order  to 
induce  persons  to  settle  in  a  new  and  undeveloped  country 
an  effective  appeal  must  be  made  to  those  who  are  not  get- 
ting along  successfully  where  they  are  already  located,  and 
that  this  appeal  would  not  be  great  if  the  land  newly  ac- 
quired could  be  taken  by  their  creditors  to  pay  their  past 
debts.  The  Supreme  Court  upheld  the  legislation  in  ques- 
tion, although  Justice  Holmes  entered  a  strong  dissent. 

§102.  Does  Annexation  Bring  Territories  within  the  Scope 
of  Existing  Federal  Legislation?  It  seems  clear  that  the 
mere  conquest  and  military  occupation  of  territory  does  not 
result  in  its  annexation  to  the  United  States.  This  was 
declared  to  be  so,  and  was  at  least  one  ground  of  decision 
in  Fleming  v.  Page,3  and  was  admitted  by  both  the  majority 
and  minority  of  the  court  in  DeLima  v.  Bidwell. 4  It  requires 
either  a  treaty  or  congressional  action  to  effect  such  annexa- 
tion.  The  point  upon  which  the  Supreme  Court  divided 
five  to  four  in  DeLima  v.  Bidwell  was  as  to  whether  the  mere 
act  of  annexation  by  treaty  brings  the  annexed  territory 

1  (1918)  248  U.  S.  104. 

3  Miller  v.  Little  (1874)  47  Calif.  348;  Patton  v.  Richmond  (1876)  28 
La.  Ann.  795;  Dickerson  v.  Bridges  (1898)  147  Mo.  235;  Baldwin  v.  Boyd 
(1885)  1 3  Neb.  444;  Jackett  v.  Bower  (1901)  62  Neb.  232 ;  Ritzville  Hard- 
ware Co.  v.  Bennington  (1908)  50  Wash.  in. 

3  (i  850)  9  Howard  603.  On  the  other  hand  it  will  not  be  held  that  the 
laws  of  the  United  States  are  operative  in  American  territory  during  a 
period  of  actual  occupation  by  the  forces  of  an  enemy.  United  States  v . 
Rice  (1819)  4  Wheaton  246. 

<  (1901)  182  U.S.  i. 
19 


290       THE  AMERICAN  CONSTITUTION     §  102 

under  the  operation  of  such  existing  general  congressional 
legislation  as  that  embodied  in  revenue  laws.  The  majority 
held  that  annexation  has  such  effect,  while  the  minority 
declared  that  some  further  act  of  the  government  is  neces- 
sary to  put  such  legislation  into  operation  in  the  territory. 

The  majority  was  confronted  at  the  outset  with  the  case 
of  Fleming  v.  Page,  just  referred  to,  in  which  the  court  held 
that  part  of  Mexico,  though  occupied  by  our  forces,  was  still 
a  foreign  country  under  the  revenue  law.  In  that  case, 
after  declaring  that  territory  is  not  annexed  merely  by  con- 
quest and  military  occupation,  the  court  went  on  to  say 
that  federal  revenue  laws  do  not  apply  to  territories  until 
they  are  extended  to  them  by  act  of  Congress.  The  major- 
ity of  the  court  in  the  DeLima  case  disposed  of  this  part  of 
the  opinion  in  the  Fleming  case  on  the  ground  that  it  was 
not  necessary  to  the  decision,  and  that  it  was  in  effect  re- 
pudiated three  years  later  in  the  case  of  Cross  v.  Harrison. x 
In  that  case  it  appeared  that  California  had  been  conquered 
and  occupied  by  our  military  forces  and  a  government  set 
up  under  the  direction  of  the  President  with  express  author- 
ity to  levy  duties  and  raise  necessary  revenue.  Under  this 
authority  import  duties  were  levied  at  the  port  of  San  Fran- 
cisco. The  treaty  of  peace  by  which  this  territory  was  ceded 
to  the  United  States  was  ratified  May  30,  1848,  knowledge 
of  this  fact  was  received  in  California  in  August,  and  Con- 
gress did  not  legislate  for  the  purpose  of  including  California 
in  a  collection  district  until  March,  1849.  Until  knowledge 
of  the  ratification  was  received  the  provisional  government 
collected  the  tariffs  imposed  by  it,  but  after  such  knowledge 
had  come  to  it  that  government  made  collections  in  accord- 
ance with  existing  revenue  laws  of  the  United  States.  This 
action  taken  by  the  local  government  upon  its  own  initiative 
accorded  with  the  instructions  shortly  after  received  from 
the  Secretary  of  State  and  the  Secretary  of  the  Treasury. 
The  court  held  that  the  President  as  Commander-in-Chief 
had  authority  to  establish  a  temporary  government  in  the 
conquered  territory  and  to  direct  the  collection  of  import 

1  (1853)  1 6  Howard  164. 


§  102  FEDERAL  TERRITORY  291 

duties  by  that  government,  that  this  government  had  a 
right  to  continue  to  function  after  the  treaty  of  peace  was 
ratified  and  until  Congress  made  provision  for  the  govern- 
ment of  the  territory,  and  that  after  the  ratification  of  the 
treaty  the  President  might  direct  the  provisional  govern- 
ment to  collect  import  duties  according  to  the  terms  of  the 
revenue  laws  of  the  United  States  because,  as  the  court 
says:  " By  the  ratification  of  the  treaty  California  became 
a  part  of  the  United  States.  And  as  there  is  nothing  differ- 
ently stipulated  in  the  treaty  with  respect  to  commerce,  it 
became  instantly  bound  and  privileged  by  the  laws  which 
Congress  had  passed  to  raise  a  revenue  from  duties  on  im- 
ports and  tonnage."1  The  case  does,  therefore,  seem  to  be 
inconsistent  with  the  second  ground  of  the  decision  in 
Fleming  v.  Page,  and  since  the  Chief  Justice  who  wrote  the 
earlier  opinion  and  all  of  the  rest  of  the  court  concurred  in 
the  later  decision  the  authoritativeness  of  the  second  ground 
of  the  earlier  decision  would  seem  at  least  to  be  put  in  grave 
doubt. 

The  majority  of  the  court  in  DeLima  v.  Bidwell  also  rely 
upon  executive  precedent  to  support  their  position.  They 
admit  that  in  the  case  of  Louisiana,  the  first  territory  to 
be  acquired  from  a  foreign  country,  the  executive  depart- 
ment of  the  government  took  the  view  that  existing  revenue 
legislation  did  not  extend  to  the  territory,  and  directed  that 
the  preexisting  revenue  laws  there  should  be  continued  in 
force,  and  that  in  the  cases  of  Florida  and  Texas  there  was 
no  interval  between  cession  and  legislation  in  the  one  case 
and  between  the  annexation  and  admission  into  the  Union 
in  the  other.  They  rely,  however,  upon  the  official  letters 
of  the  Secretary  of  State  and  the  Secretary  of  the  Treasury 
to  those  in  charge  of  the  temporary  government  in  California 
before  Congress  legislated  for  that  territory  directing  them 
that  the  revenue  laws  were  in  force  and  applicable  there,  and 
letters  of  a  later  Secretary  of  State  and  Secretary  of  the 
Treasury  declaring  that  Alaska  came  within  the  provisions 
of  the  national  revenue  laws,  during  the  period  between  the 

1  Cross  v.  Harrison  (1853)  16  Howard  164,  197. 


292       THE  AMERICAN  CONSTITUTION    §  102 

annexation  of  that  territory  and  formal  extension  of  the 
revenue  laws  to  it  by  Congress. 

Finally  the  majority  argued  that  since  by  the  treaty  of 
cession  the  territory  in  question,  Porto  Rico,  had  become 
annexed  to  the  United  States,  it 

"can  remain  a  foreign  country  under  the  tariff  laws  only 
upon  one  of  two  theories:  either  that  the  word  'foreign' 
applies  to  such  countries  as  were  foreign  at  the  time  the 
statute  was  enacted,  notwithstanding  any  subsequent 
change  in  their  condition,  or  that  they  remain  foreign 
under  the  tariff  laws  until  Congress  has  formally  embraced 
them  within  the  customs  union  of  the  States."1 

The  majority  judges  hold  that  neither  position  is  tenable; 
that  a  territory  must  be  either  entirely  foreign  or  entirely 
domestic,  that  it  cannot  &t  the  same  time  partake  of  the 
characteristics  of  both,  and  that  since  the  territory  of  Porto 
Rico  was  not  wholly  foreign,  being  annexed  to  United  States, 
it  must  be  treated  as  coming  under  the  provisions  of  exist- 
ing revenue  laws  as  they  applied  to  the  United  States. 

The  position  of  the  four  minority  justices  was  that  a 
treaty  which  merely  provides  for  the  cession  of  territory  to 
the  United  States  does  not  of  its  own  force  bring  such  newly 
acquired  territory  within  the  provisions  of  congressional 
legislation,  applicable  at  the  time  when  it  was  passed  only  to 
the  then  existing  territory  of  the  United  States.  Therefore, 
for  the  purposes  of  the  enforcement  of  such  legislation  such 
territory  is  to  be  treated  as  if  it  were  still  foreign.  For  authori- 
ty the  dissenting  justices  depend  first  upon  Fleming  v.  Page,2 
in  which,  as  we  have  seen,  Chief  Justice  Taney  for  the  court 
does  declare  that  military  occupation  does  not  bring  territory 
under  existing  federal  legislation,  and  seems  to  base  his  de- 
cision at  least  partially  upon  this  ground.  The  case  of  Cross 
v.  Harrison3  is  explained  by  the  dissenting  justices  as  having 
decided  merely  that,  after  the  treaty  of  peace  but  before 

1  De  Lima  v.  Bidwell  (1901)  182  U.  S.  I,  197. 
a  (1850)  9  Howard  603. 
3  (1853)  16  Howard  164. 


§  102  FEDERAL  TERRITORY  293 

Congress  legislated  for  California,  the  provisional  govern- 
ment set  up  under  military  authority  by  the  President  might 
continue  to  function,  and  the  President  might  direct  that 
duties  be  levied  by  that  government  according  to  the  provi- 
sions of  the  federal  statutes  theretofore  applicable  to  the 
rest  of  the  country.  But  in  fact  this  was  not  the  position 
taken  by  the  court  in  that  case.  The  only  conclusion  which 
can  be  reached  from  a  careful  reading  of  the  case  is  that  the 
court  held  that  the  federal  revenue  statutes  of  their  own 
force  applied  to  the  territory  in  question.  This  case  is, 
therefore,  opposed  to  the  position  taken  by  the  minority  of 
the  court.  The  dissenting  justices  also  point  to  the  opinion 
of  Justice  Johnson  at  circuit  in  the  case  of  American  Insur- 
ance Company  v.  Canter,1  his  decision  being  later  affirmed 
by  the  Supreme  Court.  He  declared  that  by  the  law  of  na- 
tions the  laws  of  annexed  territory  remain  in  force  until 
changed  by  the  new  sovereign  government,  that  there  is 
nothing  in  the  Constitution  requiring  the  application  of  a 
different  rule,  and  that  "on  this  subject  we  have  the  most 
explicit  proof  that  the  understanding  of  our  public  function- 
aries is  that  the  government  and  laws  of  the  United  States 
do  not  extend  to  such  territory  by  the  mere  act  of  cession." 
When  this  case  was  before  the  Supreme  Court  Daniel 
Webster,  being  one  of  the  counsel,  said :  "  Do  the  laws  of  the 
United  States  reach  Florida?  Not  unless  by  particular 
provision."2 

The  minority  justices  find  comfort  as  did  the  majority  of 
the  court  in  executive  precedents.  They  point  particularly 
to  the  attitude  taken  by  the  Secretary  of  the  Treasury  in  the 
case  of  Louisiana,  the  first  territory  acquired  by  treaty, 
when  he  directed  that  until  Congress  should  act  duties 
should  be  collected  there  according  to  the  laws  there  in  force 
before  the  annexation.  The  executive  precedent  is  clearly 
in  the  minority's  favor,  but  the  opinions  of  the  Secretaries 
of  State  and  of  the  Treasury  with  regard  to  the  territories  of 

1  (1828)  i  Peters  511,  Justice  Johnson's  opinion  at  circuit  being  given 
in  a  note. 
3  Ibid.,  538. 


294       THE  AMERICAN  CONSTITUTION     §  102 

California  and  Alaska,  referred  to  above,  which  are  prac- 
tically ignored,  take  the  opposite  view,  and  in  the  case  of 
Alaska  Secretary  of  State  Seward  bases  his  opinion  that 
federal  revenue  laws  apply  ipso  facto  to  territories  upon 
annexation  upon  the  case  of  Cross  v.  Harrison,1  which  clearly 
supports  his  view,  though  the  minority  justices  think  that  it 
does  not.  In  the  dissenting  opinion  it  is  also  pointed  out 
that  Congress  in  the  case  of  each  accession  of  territory, 
and  even  in  the  case  of  the  admission  of  Texas  made  express 
statutory  provision  for  the  extension  of  the  revenue  laws  to 
the  new  areas,  indicating  the  opinion  of  that  body  that  they 
would  not  be  operative  there  automatically. 

Finally  the  minority  justices  admit  that  the  treaty  power 
is  a  proper  instrument  for  the  annexation  of  territory,  and 
that  a  treaty  is  the  supreme  law  of  the  land,  but  they 
ask  whether  there  is  anything  in  the  treaty  for  the  annexa- 
tion of  Porto  Rico  which  repeals  or  changes  the  existing 
tariff  law?  If  not  then,  since  before  the  treaty  goods  coming 
from  Porto  Rico  were  subject  to  duties,  they  must  still  be 
so  subject  notwithstanding  the  treaty.  It  is  claimed  that 
to  argue  that  since  Porto  Rico  is  no  longer  foreign  territory 
it  must  be  domestic  as  that  term  is  used  in  the  revenue 
laws,  is  to  let  the  use  of  words  confuse  the  issue,  and  defeat 
the  intention  of  the  legislators.  The  question  was  '  'whether 
a  particular  tariff  law  applies"  and  the  dissenting  justices 
held  that  it  did  apply  to  Porto  Rico  notwithstanding  the 
treaty  of  cession,  as  it  had  applied  before  that  treaty. 

Two  things  seem  clear.  Congress  could  expressly  make 
legislation  applicable  to  territory  which  should  be  afterwards 
acquired.  On  the  other  hand  the  terms  of  a  treaty  for  the 
annexation  of  territory  might  extend  to  that  territory  federal 
laws  which  without  such  treaty  provision  would  not  apply 
there.  This  would  seem  to  be  fairly  within  the  scope  of  the 
treaty-making  power,  and  would  thus  become  part  of  the 
supreme  law  of  the  land,  supplanting  any  inconsistent 
federal  legislation.  Since  congressional  statutes  and  treaties 
are  both  declared  by  the  Constitution  to  be  the  supreme  law 

1  (1853)  1 6  Howard  164. 


§  103  FEDERAL  TERRITORY  295 

of  the  land,  either  may  be  repealed  by  the  other. x  It  does 
not  seem  reasonable  to  suppose  that  Congress  in  passing  a 
tariff  law,  providing  for  the  imposition  of  certain  duties 
upon  goods  coming  into  the  United  States  from  places  out- 
side, or  in  passing  any  other  general  statute,  intends  that 
it  shall  apply  without  further  legislation  to  after-acquired 
territory.  Nor  does  it  seem  clear  that  drafters  of  a  treaty  for 
the  annexation  of  territory,  or  the  Senate  in  ratifying  such  a 
treaty,  show  an  intention  from  such  action  alone  to  extend 
to  that  territory  laws  which  when  passed  by  Congress  were 
not  intended  to  apply  there,  whether  they  are  revenue  laws 
or  laws  of  other  character.  Such  intention  certainly  should 
be  clear  before  a  treaty  is  held  to  amend  or  repeal  statutory 
law.  The  position  of  the  minority  in  DeLima  v.  Bidwell 
would,  therefore,  seem  to  be  more  correct  than  that  of  the 
majority,  unless  some  constitutional  guaranty  prevents  the 
diversity  of  treatment  which  would  result  from  that  view. 
That  question  we  take  up  directly.  In  Dooley  v.  United 
States2  the  Supreme  Court,  applying  the  principle  laid  down 
in  the  DeLima  case,  held  that  after  the  treaty  of  cession, 
since  the  ceded  territory  was  no  longer  foreign  territory  so 
that  duties  could  be  levied  under  the  revenue  laws  upon 
goods  coming  from  that  territory  to  a  port  of  the  United 
States,  it  was  no  longer  foreign  so  that  the  military  governor 
could  levy  duties  upon  goods  coming  to  it  from  a  port  of 
the  United  States.  In  Fourteen  Diamond  Rings  v.  United 
States3  the  rule  of  the  DeLima  case  was  applied  to  the  Philip- 
pines. In  both  of  these  cases  the  same  four  justices  dis- 
sented as  in  the  first  case.4 

§103.  Territories  and  the  Constitutional  Guaranties.  At 
the  same  time  that  the  case  of  DeLima  v.  Bidwell  was  de- 
cided the  decision  in  Downes  v.  Bidwell5  was  handed  down. 
This  case  involved  the  constitutionality  of  federal  legislation 

1  See  sec.  34. 

2  (1901)  182  U.  S.  222. 

3  (1901)  183  U.  S.  176. 

*  They  were  Justices  McKenna,  Shiras,  White,  and  Gray. 
« (1901)  18211.8.244. 


296       THE  AMERICAN  CONSTITUTION     §  103 

placing  an  import  duty  upon  goods  coming  from  Porto 
Rico.  This  legislation  was  attacked  as  being  in  conflict 
with  the  provision  of  the  Constitution  that  "all  duties, 
imposts  and  excises  shall  be  uniform  throughout  the  United 
States."1  If  this  clause  applies  to  such  a  territory  as  Porto 
Rico,  it  was  admitted  by  all  parties  that  the  legislation  in 
question  was  unconstitutional.  The  court,  however,  was 
divided  as  to  whether  that  clause  did  apply  to  Porto  Rico. 
The  four  justices  who  dissented  in  the  DeLima  case,  holding 
there  that  the  federal  revenue  legislation  did  not  apply  in 
Porto  Rico,  held  in  the  instant  case  that  the  application  of 
the  constitutional  section  in  question  did  not  extend  to  that 
territory.  They  were  joined  by  Justice  Brown,  who  had 
agreed  with  the  majority  in  the  preceding  case.  Thus  by 
the  adhesion  of  Justice  Brown  the  minority  justices  in  the 
DeLima  case  became  majority  justices  in  Dowries  v.  Bidwell, 
while  all  of  the  majority  justices  in  the  preceding  case,  ex- 
cept Justice  Brown,  dissented  in  this  case.  Of  the  majority 
justices  three  wrote  opinions — Brown,  White,  and  Gray, 
while  Chief  Justice  Fuller  and  Justice  Harlan  wrote  opinions 
for  the  minority. 

As  the  majority  justices  point  out,  according  to  the  law  of 
nations  a  State  which  has  acquired  territory  may  govern  it 
as  it  sees  fit,  and  it  would  naturally  follow  that  the  United 
States  government  would  have  the  same  power  unless  it  is 
restrained  by  the  Constitution.  These  justices,  and  par- 
ticularly Justice  White,  try  to  make  it  perfectly  clear  that 
Congress  can  never  act  except  in  accordance  with  the  Con- 
stitution, but  they  assert  that  it  does  not  follow  from  this 
that  all  of  the  provisions  of  the  Constitution  apply  to  all  of 
the  territory  over  which  Congress  has  jurisdiction.  They 
point  out  that  if  all  of  the  provisions  of  the  Constitution 
apply  to  every  territory  as  soon  as  it  is  annexed  by  the 
United  States,  provisions  in  most  of  our  treaties  by  which 
we  have  acquired  territory  are  unconstitutional.  They 
point  to  the  treaty  ceding  Louisiana  which  recognized  that 
the  inhabitants  of  that  territory  were  not  to  have  the  priv- 

1  Art.  I,  sec.  8,  par.  I.    For  a  discussion  of  this  clause  see  sec.  80. 


§  103  FEDERAL  TERRITORY  297 

ileges  of  citizens  of  the  United  States  until  they  should  be 
later  conferred  upon  them,  and  which  gave  French  and 
Spanish  vessels  a  right  to  enter  the  ports  of  the  ceded  terri- 
tory on  the  same  basis  as  American  ships.  French  and 
Spanish  ships  were  not  allowed  to  enter  other  ports  of  the 
United  States  on  this  basis,  and  so  a  preference  was  given 
to  the  Louisiana  ports,  which  would  be  unconstitutional  if 
the  constitutional  clause  forbidding  the  giving  of  preference 
to  the  ports  of  one  State  over  those  of  another1  was  there  in 
force.  Similar  provisions  were  contained  in  the  treaty  for  the 
cession  of  Florida.  So  in  the  act  annexing  Hawaii  provision 
was  made  for  continuing  in  force  the  existing  customs 
regulations  of  that  territory,  although  this  put  its  ports 
under  a  disadvantage  as  compared  with  the  other  ports  of 
the  United  States.  And  by  the  treaty  with  Spain  for  the 
cession  of  Porto  Rico  and  the  Philippines  it  was  provided 
that  Spanish  vessels  might  enter  the  ports  of  those  territo- 
ries on  the  same  basis  as  American  vessels*2  Numerous 
instances  of  legislation  are  referred  to,  also,  in  which  Con- 
gress has  recognized  a  difference  between  States  and  terri- 
tories under  the  Constitution.3 

The  majority  of  the  court  rely  for  judicial  support  for 
their  position  upon  American  Insurance  Company  v.  Canter.* 
In  that  case  it  was  held  that  Congress  under  its  power  to 
legislate  for  the  territories  may  establish  territorial  courts, 
and  that  in  doing  so  the  provisions  of  the  Constitution  as 
to  the  tenure  of  federal  judges  and  the  jurisdiction  of  federal 
courts  do  not  apply.  But  this,  in  fact,  is  not  put  upon  the 
ground  that  the  constitutional  provisions  do  not  extend  to 
the  territories,  but  upon  the  ground  that  Congress  in  legis- 
lating for  the  territories  "exercises  the  combined  powers  of  a 
general  and  of  a  state  government,"  and  in  this  instance  was 
acting  in  the  latter  capacity.  The  majority  justices  admit 
that  there  is  language  in  Loughborough  v.  Blake,5  Cross  v. 

1  Art.  I,  sec.  9,  par.  6 

3  Downes  v.  Bidwell  (1901)  182  U.  S.  244,  253  to  257. 
a  Ibid.,  257.  <  (1828)  I  Peters  511. 

5(1820)  5  Wheaton  317. 


298       THE  AMERICAN  CONSTITUTION    §  103 

Harrison1  and  Dred  Scott  v.  Sandford,2  which  is  embarrass- 
ing, but  they  hold  such  language  in  the  first  two  cases  to 
be  only  dicta,  and  treat  that  part  of  the  Dred  Scott  case  in 
question  as  not  being  entitled  to  great  weight  because  it  was 
so  much  influenced  by  political  considerations,  and  because 
the  case  had  in  fact  been  disposed  of  on  another  ground. 
On  the  other  hand  these  justices  point  out  that  the  other 
cases  in  which  it  had  been  held  that  all  of  the  provisions  of 
the  Constitution  applied  to  the  territories  involved  were 
cases  which  arose  after  the  provisions  of  the  Constitution 
had  been  extended  by  Congress  to  the  territories  in  ques- 
tion, and  they  emphasize  the  fact  that  Congress  had  thought 
it  necessary  from  time  to  time  to  extend  the  provisions  of 
the  Constitution  to  the  territories.3 

The  majority  of  the  court  assert  that  the  phrase  "  through- 
out the  United  States,"  in  the  constitutional  clause  requiring 
uniformity  of  duties,  meant  the  territory  of  the  United 
States  at  the  time  of  the  adoption  of  the  Constitution,  and 
they  declare  that  the  other  provisions  of  the  Constitution 
were  framed  for  the  same  territory.4  As  proof  of  this  con- 
clusion they  point  to  the  Thirteenth  Amendment,  which 
declares  that  "neither  slavery  nor  involuntary  servitude, 
except  as  a  punishment  for  crime  whereof  the  party  shall 
have  been  duly  convicted,  shall  exist  within  the  United 
States  or  any  place  subject  to  their  jurisdiction."  In  this 


1  (1853)  1 6  Howard  164. 
3  ,(1856)  19  Howard  393. 


,  3  In  Mormon  Church  v.  United  States  (1890)  136  U.  S.  I,  44,  it  is  said: 
"Doubtless  Congress  in  legislating  for  the  territories  would  be  subject 
to  those  fundamental  limitations  in  favor  of  personal  rights  which  are 
formulated  in  the  Constitution  and  its  amendments;  but  these  limita- 
tions would  exist  rather  by  inference  and  the  general  spirit  of  the  Con- 
stitution from  which  Congress  derives  all  its  powers,  than  by  any  express 
and  direct  application  of  its  provisions." 

4  Justice  Brown  in  his  opinion  in  Downes  v.  Bid  well  seems  to  hold  that 
the  Constitution  was  made  by  the  States  for  the  States,  and  that  in  it  the 
term  United  States  is  intended  to  cover  only  the  States. 

It  was  held  In  re  Ross  (1891)  140  U.  S.  453,  that  a  person  tried  for 
murder  before  a  consular  court  in  Japan  is  not  entitled  to  a  jury  trial,  the 
Constitution  not  applying  outside  of  the  United  States. 


§  103  FEDERAL  TERRITORY  299 

amendment  a  distinction  is  made  between  the  United  States 
and  places  "subject  to  their  jurisdiction,"  and  this  language 
shows  that  it  was  not  thought  that  a  constitutional  provision 
for  the  United  States  would  extend  of  its  own  force  to  all 
places  subject  to  their  jurisdiction. 

It  is  recognized  that  Congress  may  extend  the  provisions 
of  the  Constitution  to  the  territories,  and  it  is  declared 
that  when  Congress  has  done  so  this  action  is  irrevocable. 

The  majority  held,  as  a  result  of  all  of  these  considerations 
that  the  constitutional  provision  as  to  uniformity  of  duties 
did  not  apply  to  Porto  Rico  by  force  of  its  annexation,  and 
pointed  out  that  it  had  not  been  extended  to  that  territory 
by  Congress.  These  justices  want  it  understood,  however, 
that  it  does  not  follow  from  their  argument  that  there  are 
no  constitutional  limitations  upon  Congress  in  legislating 
for  territories.  There  are  absolute  and  unqualified  prohi- 
bitions contained  in  the  Constitution  which  prevent  any 
legislation  by  Congress  in  conflict  with  them,  but  the 
justices  do  not  attempt  to  list  those  prohibitions. 

The  minority  of  the  court  rest  their  position  upon  the  two 
propositions  that  Congress  is  always  controlled  by  the 
Constitution,  and  that  the  Constitution  was  meant  to  apply 
in  all  of  its  terms  to  all  territory  belonging  to  the  United 
States.  Therefore,  when  a  territory  is  annexed  to  the  United 
States  all  parts  of  the  Constitution  apply  to  it  as  part  of  the 
United  States.  Certainly,  they  insist,  at  least  when  Con- 
gress has  legislated  for  the  government  of  a  territory,  as  it 
had  in  the  case  of  Porto  Rico,  as  part  of  the  territory  for 
which  it  is  authorized  by  the  Constitution  to  legislate,  the 
Constitution  in  all  of  its  parts  must  apply  to  that  territory. 

The  weight  of  judicial  precedent  would  seem  to  support 
the  position  of  the  minority.  In  Loughborough  v.  Blake1 
Marshall  declared  that  the  term  United  States,  used  in  the 
clause  with  regard  to  uniformity  of  duties  "is  the  name  given 
to  our  great  republic,  which  is  composed  of  States  and  terri- 
tories." The  decision  of  the  case,  however,  was  only  that 
Congress  could  levy  taxes  in  the  District  of  Columbia  in 

1  (1820)  5  Wheaton  317. 


300       THE  AMERICAN  CONSTITUTION     §  103 

conformity  with  the  Constitution,  and  the  position  of  the 
District  of  Columbia,  having  been  part  of  the  original  States 
when  the  Constitution  was  adopted  is  obviously  different 
from  that  of  after-acquired  territories.  In  Cross  v.  Harrison1 
it  was  held  that  by  the  treaty  with  Mexico  "California  be- 
came part  of  the  United  States. "  The  conclusion  arrived  at 
from  this,  however,  was  only  that  it  thereby  came  under  the 
revenue  laws  previously  made  for  the  United  States,  and  not 
that  it  came  under  the  constitutional  provision  as  to  uni- 
formity of  duties.  In  fact  it  is  suggested  that  by  terms  in- 
troduced into  the  treaty  it  might  have  been  excluded  from 
the  operation  of  the  revenue  laws.  In  Dred  Scott  v.  Sanford2 
it  was  held  that  a  congressional  statute  forbidding  slavery 
in  a  territory  was  unconstitutional,  an«[  it  was  held  that  the 
Constitution  applies  to  territories  equally  with  the  States. 
This  is  clearly  direct  authority  for  the  minority  of  the  court  in 
Downesv.  Bidwell,  but  it  is  generally  recognized  that  the  opin- 
ions in  the  Dred  Scott  case  were  dictated  to  an  unprecedented 
degree  by  party  and  sectional  feeling,  and  that  the  case 
cannot  be  considered  as  having  the  weight  ordinarily  attach- 
ing to  a  decision  of  the  Supreme  Court. 

It  is  submitted  that  the  position  of  the  majority  of  the 
court  in  Dowries  v.  Bidwell  is  on  the  whole  preferable  to  that 
taken  by  the  minority.  By  the  law  of  nations  the  rights 
guarantied  to  citizens  of  a  State  are  not  automatically 
extended  to  the  inhabitants  of  territory  acquired  by  con- 
quest, treaty,  or  discovery  and  occupation.  0n  the  con- 
trary such  inhabitants  are  subject  to  government  by  the 
annexing  State,  which  may  legislate  for  them  in  its  discre- 
tion. Prima  facie  this  would  seem  to  be  true  of  the  United 
States  as  a  sovereign  state.  There  is  nothing  in  the  Con- 
stitution which  in  terms  covers  the  situation.  We  do  know, 
however,  that  the  framers  of  that  instrument  had  in  mind 
the  situation  of  that  territory  which  had  wrested  its  freedom 
from  England,  and  were  attempting  to  provide  for  its  pro- 
tection from  aggression,  for  its  internal  harmony,  and  for  the 

1  (1853)  1 6  Howard  164. 
*  (1856)  19  Howard  393. 


§  103  FEDERAL  TERRITORY  301 

preservation  within  its  borders  of  certain  important  guaran- 
ties of  individual  liberty  and  welfare.  Furthermore  in  the 
Thirteenth  Amendment  we  find  a  distinction  made  between 
the  United  States  and  "any  place  subject  to  their  jurisdic- 
tion." We  also  find  that  from  the  beginning  of  our  govern- 
ment treaties  have  been  made  and  legislation  framed  upon 
the  assumption  that  the  Constitution  does  not  of  its  own 
force  apply  to  annexed  territory,  and  find  that  from  time  to 
time  Congress  has  expressly  extended  the  operation  of  the 
Constitution  to  the  territories,  and  thus  incorporated  them 
into  the  United  States  as  that  term  is  used  in  the  Constitu- 
tion. It  would  seem  that  this  incorporation  could  be 
affected  directly  by  treaty  of  annexation,  although  this  has 
not  been  the  practice,  and  although  Justice  White  seemed  to 
doubt  whether  it  could  be  accomplished  except  by  congres- 
sional action.  As  was  pointed  out  particularly  in  Justice 
White's  opinion  the  doctrine  of  the  majority  does  not  leave 
Congress  unrestrained  by  the  Constitution  in  legislating  for 
the  territories,  since  there  are  certain  things  which  Congress 
is  absolutely  and  unequivocally  forbidden  to  do  at  all. 

In  Hawaii  v.  Mankichi*  and  Dorr  v.  United  States* 
it  was  held  that  the  guaranties  in  the  Fifth  and  Sixth 
Amendments  with  regard  to  indictment  and  jury  trial  do 
not  apply  to  unincorporated  territories  which  have  not 
been  brought  under  the  Constitution  by  congressional  action. 
These  cases  together  with  Dowries  v.  Bidwell3  lead  fairly  to 
the  conclusion  that  none  of  the  guaranties  of  the  Second  to 
the  Eighth  Amendments  apply  in  unincorporated  territories. 4 
Similarly  it  would  seem  that  a  person  born  in  a  territory  not 
incorporated  into  the  United  States  is  not  born  "in  the 
United  States,"  as  that  term  is  used  in  the  Fourteenth 

1  (1903)  190  u-  S.  197- 
•  (1904)  195  U.  S.  138. 

3  (1901)  182  U.  S.  244. 

4  Though  it  has  been  suggested  that  there  are  constitutional  restric- 
tions as  to  liberty  and  property  which  extend  even  to  unincorporated 
territories.    Mormon  Church  v.  United  States  (1890)  136  U.  S.  i,  44; 
Downes  v.  Bidwell  (1901)  182  U.  S.  244,  295;  Dorr  ».  United  States 
(1904)  195  U.S.  138,148. 


302       THE  AMERICAN  CONSTITUTION     §  104 

Amendment,  and  so  does  not  by  force  of  its  provisions  be- 
come a  citizen  of  the  United  States.  As  said  by  Justice 
Brown  in  Downes  v.  Bidwell, *  ' '  here  there  is  a  limitation  to 
persons  born  or  naturalized  in  the  United  States,  which  is 
not  extended  to  persons  born  in  any  place  'subject  to  their 
jurisdiction.' "  It  will  be  noticed,  however,  that  the  provi- 
sions of  the  Eighteenth  (the  Prohibition)  Amendment  extend 
to  "the  United  States  and  all  territories  subject  to  the 
jurisdiction  thereof."  Other  provisions  of  the  Constitution 
constitute  direct  prohibitions  of  any  legislation  by  Congress 
in  certain  fields.  Such  is  the  First  Amendment  which  says 
"Congress  shall  make  no  law"  as  to  an  established  religion, 
or  prohibiting  the  free  exercise  thereof,  or  abridging  the  free- 
dom of  speech,  the  press,  or  of  assembly.  The  Constitution 
also  declares  that  ' '  no  bill  of  attainder  or  ex  post  facto  law 
shall  be  passed,"2  that  "no  title  of  nobility  shall  be  granted 
by  the  United  States," 3  and  that  "the  writ  of  habeas  corpus 
shall  not  be  suspended  unless  when  in  case  of  rebellion  or 
invasion  the  public  safety  may  require  it."4 

§104.  When  Is  a  Territory  Incorporated  into  the  United 
States?  When  the  Hawaiian  Islands  were  annexed  to  the 
United  States  by  joint  resolution  in  1 898, 5  it  was  therein  pro- 
vided that  the  islands  were ' '  annexed  as  part  of  the  territory  of 
the  United  States"  and  "subject  to  the  sovereign  dominion 
thereof,"  that  until  Congress  acted  in  the  matter  the  govern- 
ment should  be  carried  on  by  officers  appointed  by  the  Presi- 
dent, and  that  "the  municipal  legislation  of  the  Hawaiian 
Islands  .  .  .  not  inconsistent  with  this  joint  resolution 
nor  contrary  to  the  Constitution  of  the  United  States  nor  to 
any  existing  treaty  of  the  United  States,  shall  remain  in 
force  until  the  Congress  of  the  United  States  shall  otherwise 
determine."  It  was  further  provided  that  the  existing  cus- 
toms relations  of  the  islands  with  the  United  States  and 

1  (1901)  182  U.  S.  244,  251. 

a  Art.  I,  sec.  9,  par.  3. 

3  Ibid.,  par.  8. 

•»  Ibid.,  par.  2. 

s  Joint  Resolution  of  July  7,  1898,  30  Stat.  750. 


§  104  FEDERAL  TERRITORY  303 

other  countries  should  continue  until  changed  by  Congress. 
One  Mankichi  was  thereafter  convicted  of  manslaughter  in 
the  islands  in  accordance  with  the  local  laws,  but  without 
indictment,  and  without  the  verdict  of  a  unanimous  jury. 
The  conviction  was  sustained  by  the  Supreme  Court,1  but 
the  court  was  divided  five  to  four.  Two  opinions  were 
written  by  the  majority.  Justice  Brown  held  that  prima 
facie  all  provisions  of  the  Constitution  were  extended  to  the 
islands,  and  that  "  clearly  they  would  be  operative  upon  any 
municipal  legislation  thereafter  adopted,  and  upon  any  pro- 
ceedings thereafter  had,  when  the  application  of  the  Con- 
stitution would  not  result  in  the  destruction  of  existing 
provisions  conducive  to  the  peace  and  good  order  of  the 
community."2  But  he  held  that  since,  if  the  constitutional 
provisions  as  to  indictment  and  jury  trial  were  held  to  be  in 
force,  the  existing  municipal  law  for  the  trial  of  criminals 
would  be  unenforceable,  and  since  no  law  had  been  put  in 
its  place  by  Congress,  it  was  to  be  presumed  that  Congress 
did  not  intend  those  constitutional  provisions  to  apply. 
Justice  White  wrote  a  concurring  opinion  in  which  Justice 
McKenna  joined  in  which  he  held  that  it  was  not  the  inten- 
tion of  Congress  to  extend  the  whole  Constitution  to  the 
islands,  but  it  was  only  their  intention  to  annul  so  much  of 
the  municipal  legislation  as  might  conflict  with  the  provi- 
sions of  the  Constitution  which  apply  to  all  territories, 
though  he  did  not  say  what  those  provisions  are.  This  con- 
clusion he  bases  upon  the  facts  that  customs  duties  were 
continued  in  the  islands  by  the  joint  resolution  which  con- 
flicted with  the  uniform  provision  of  the  Constitution  as  to 
duties,  that  Congress  contemplated  the  framing  of  a  new 
body  of  laws  for  the  islands  and  appointed  a  commission  to 
that  end,  and  that  in  1900  Congress  passed  an  act  for  the 
government  of  the  islands  which  did  clearly  bring  them 
under  all  of  the  provisions  of  the  Constitution.  Chief 
Justice  Fuller  wrote  a  dissenting  opinion  in  which  he  stood 
upon  the  words  of  the  resolution  which  he  declared  could 

1  Hawaii  v.  Mankichi  (1903)  190  U.  S.  197. 
3  Ibid.  ,217. 


304       THE  AMERICAN  CONSTITUTION     §  104 

mean  nothing  else  but  that  no  legislation  contrary  to  the 
Constitution  remained  in  force.  Justices  Peckham  and 
Brewer  concurred  in  this  opinion.  Justice  Harlan  also  dis- 
sented, but  upon  the  ground  that  every  territory  upon  an- 
nextion  comes  at  once  and  by  force  of  such  annexation  under 
all  of  the  provisions  of  the  Constitution. 

In  Dorr  v.  United  States1  the  question  was  whether  an 
inhabitant  of  the  Philippines  has  a  constitutional  right  to  a 
jury  trial.  Justice  Day  writing  the  opinion  of  the  court  held 
that  the  treaty  of  cession  clearly  did  not  incorporate  the 
Philippines,  since  it  declared  that  "the  civil  rights  and 
political  status  of  the  native  inhabitants  of  the  territories 
hereby  ceded  to  the  United  States  shall  be  determined  by 
the  Congress."  Furthermore,  when  Congress  legislated 
for  that  territory  they  expressly  declared  that  that  provision 
of  the  revised  statutes  should  not  apply  which  gives  force 
and  effect  to  the  Constitution  in  the  territories.  He  further 
held  that  trial  by  jury  is  not  a  fundamental  right,  "which 
goes  wherever  the  jurisdiction  of  the  United  States  extends. ' ' 2 
He  does  not  suggest  what,  if  any,  those  rights  may  be. 
The  Chief  Justice  and  Justices  Peckham  and  Brewer  con- 
curred solely  on  the  authority  of  the  Mankichi  case,  while 
Justice  Harlan  dissented  as  he  did  in  that  case. 

In  Rassmussen  v.  United  States3  it  was  held  by  a  unani- 
mous court  that  Alaska  had  been  incorporated  into  the 
United  States  and  brought  under  all  of  the  provisions  of  the 
Constitution.  In  the  treaty  for  the  cession  of  that  territory 
it  was  declared  that  "the  inhabitants  of  the  ceded  territory 
shall  be  admitted  to  the  enjoyment  of  all  the  rights,  advan- 
tages and  immunities  of  citizens  of  the  United  States." 
This  had  been  followed  by  legislation  which  the  court  held 
showed  an  intention  on  the  part  of  Congress  to  consider 
such  territory  as  incorporated.  Furthermore  that  terri- 

'  (1904)  195  U.  S.  138. 

2  The  federal  legislation  for  the  territory  declared  that  no  person 
should  be  held  for  a  criminal  offense  without  due  process  of  law.    That 
due  process  does  not  require  a  jury  trial  see  sec.  247 

3  (1905)  197  U.  S.  516. 


§  105  FEDERAL  TERRITORY  305 

tory  had  previously  been  declared  by  the  Supreme  Court 
to  have  come  under  all  of  the  constitutional  provisions. 

It  is  apparent  from  these  cases  that  the  Supreme  Court 
will  determine  each  case  with  regard  to  incorporation  of 
territories  on  its  own  facts,  striving  to  determine  what  the 
intention  was  in  each  case.  The  Dorr  and  Rassmussen 
cases  seem  quite  clear,  but  the  decision  in  the  Mankichi 
case  seems  at  least  doubtful. 

§105.  The  District  of  Columbia.  It  was  desired  by  those 
who  drafted  the  Constitution  that  the  national  government 
should  have  a  seat  which  should  not  be  under  the  jurisdic- 
tion of  any  one  of  the  States,  and  to  this  end  Congress  was 
given  power  by  the  Constitution 

"to  exercise  exclusive  legislation  in  all  cases  whatever 
over  such  district  (not  exceeding  ten  miles  square)  as 
may,  by  cession  of  particular  States  and  the  acceptance  of 
Congress,  become  the  seat  of  the  government  of  the 
United  States,  and  to  exercise  like  authority  over  all 
places  purchased  by  the  consent  of  the  legislature  of  the 
State  in  which  the  same  shall  be,  for  the  erection  of  forts, 
magazines,  arsenals,  dockyards,  and  other  needful 
buildings."1 

As  a  result  of  this  provision  Congress  may  legislate  for  the 
District  of  Columbia,  not  only  as  part  of  the  United  States 
under  the  general  power  delegated  to  it,  but  "it  may  exer- 
cise within  the  District  all  legislative  powers  that  the  legisla- 
ture of  a  State  might  exercise  within  a  State,"2  including  all 
that  are  included  in  the  States'  police  powers. 3  We  have  seen 
in  a  preceding  section  that  Congress  may  delegate  to  terri- 
torial governments  very  broad  governmental  powers,  but 

1  Art.  I,  sec.  8,  par.  17. 

3  Capital  Traction  Co.  v.  Hof  (1899)  174  U.  S.  I,  5.  By  congressional 
legislation  the  common  law  is  declared  to  be  in  force  so  far  as  applicable  to 
conditions  there  and  not  inconsistent  with  congressional  or  local  legisla- 
tion. Crawford  v.  United  States  (1909)  212  U.  S.  183. 

J  District  of  Columbia  v.  Brooke  (1909)  214  U.  S.  138,  149;  Block  v. 
Hirsh  (1921)  41  Sup.  Ct.  Rep.  458.  As  to  the  States'  police  power  see 
Chap.  32. 


306       THE  AMERICAN  CONSTITUTION     §  105 

in  the  case  of  the  District  of  Columbia  it  seems  that  Con- 
gress has  only  authority  to  delegate  the  exercise  of  munici- 
pal powers.1  The  central  government  may  acquire  title 
to  other  pieces  of  land  within  the  States,  and  this  may  be 
done  without  the  consent  of  the  States  and  even  by  the 
exercise  of  the  power  of  eminent  domain,2  but  Congress 
cannot  exercise  governmental  authority  over  such  lands 
unless  "purchased  by  the  consent  of  the  legislature  of  the 
State  in  which  the  same  shall  be."3 

In  1820  in  the  case  of  Loughborough  v.  Blake4  Chief  Jus- 
tice Marshall  held  that  all  of  the  provisions  of  the  Constitu- 
tion are  applicable  to  the  District  of  Columbia.  The  same 
proposition  was  reiterated  in  Callan  v.  Wilson5  where  it  was 
held  that  the  constitutional  provisions  as  to  jury  trial 
in  criminal  proceedings  apply  in  the  District.  In  both 
of  these  cases,  however,  it  was  assumed  that  the  same 
was  true  of  the  territories.  We  have  seen  that  this  is 
no  longer  held  to  be- true  with  regard  to  unincorporated 
territories,  but  nevertheless  in  the  case  which  established 
that  doctrine  for  the  territories  the  rule  established  for 
the  District  of  Columbia  in  the  earlier  cases  was  not 
attacked.  Justice  Brown  in  the  opinion  of  the  court 
declared  that,  since  the  District  of  Columbia  was  part 
of  the  original  States  which  adopted  the  Constitution,  all  of 
the  provisions  attached  at  once  to  that  area,  and  it  could  not 
be  taken  out  from  under  the  provisions  of  the  Constitution 
by  being  ceded  to  the  United  States. 6  However,  in  1 871  the 
Constitution  was  specifically  extended  to  the  District,  so 
that  since  that  date  assurance  has  been  made  doubly  sure. 7 

1  Stoutenburgh  v.  Hennick  (1889)  129  U.  S.  141, 147. 

a  Kohl?.  United  States  (1875)  91  U.  S.  367. 

3  Fort  Leavenworth  R.  R.  Co.  v.  Lowe  (1884)  114  U.  S.  525.  But 
such  property  cannot  be  taxed  by  the  State.  Van  Brocklin  v.  Tennessee 
(1885)  117  U.S.  151.  4  5  Wheaton  317. 

s  (1888)  127  U.  S.  540.  See  also  Capital  Traction  Co.  v.  Hof  (1899) 
174  U.  S.  i,  holding  applicable  to  the  District  the  constitutional  provi- 
sion as  to  jury  trial  in  civil  actions. 

6  Downes  v.  Bidwell  (1901)  182  U.  S.  244,  260. 

7  Act  of  Feb.  21.  1871,  16  Stat.  426. 


§  io6  FEDERAL  TERRITORY  307 

But  Marshall  declared1  that  the  District  of  Columbia  is 
not  a  "State"  in  the  sense  in  which  that  term  is  used  in  the 
Constitution  where  it  gives  federal  courts  jurisdiction  over 
actions  between  "citizens  of  different  States,"2  and  this 
authority  has  been  followed.3  However  a  treaty  giving 
certain  rights  to  aliens  within  the  States  of  the  Union  was 
held  to  include  the  District.4 

§106.  Admission  of  States.  The  only  provision  in  the 
Articles  of  Confederation  for  increasing  the  number  of  States 
is  contained  in  Article  XI,  as  follows :  ' '  Canada  acceding  to 
this  confederation,  and  joining  in  the  measures  of  the  United 
States,  shall  be  admitted  into,  and  entitled  to  all  the  ad- 
vantages of  this  Union:  but  no  other  colony  shall  be  ad- 
mitted into  the  same,  unless  such  admission  be  agreed  to  by 
nine  States. "  This  makes  no  provision  for  the  formation  of 
new  States  out  of  the  unsettled  western  territory.  But  as  we 
have  seen  earlier  in  this  chapter  the  agitation  for  the  adoption 
of  the  Articles  of  Confederation  led  finally  to  the  cession  of  the 
western  territory  to  the  national  government.  In  order  par- 
ticularly to  induce  such  cession  by  Virginia  Congress  declared 
by  resolve  in  1780  that  if  the  desired  cessions  were  made  the 
territory  would  be  held  for  the  public  benefit  and  would  be 
formed  into  new  republican  States  with  the  same  status  as 
the  other  States.  The  cessions  were  made  and  accepted 
under  the  guaranties  of  this  resolve.  After  the  cession 
Congress  passed  another  resolve  in  1784  for  the  government 
of  the  ceded  territory  and  for  the  admission  of  new  States 
to  be  formed  from  it.  The  famous  Ordinance  for  the 
Government  of  the  Northwest  Territory,  passed  by  Con- 
gress in  1787,  also  contained  specific  provisions  for  the  erec- 
tion of  new. States  in  the  ceded  territory.5  Though  the 
Articles  of  Confederation  did  not  provide  for  the  acquisition 
of  territory  by  the  national  government,  nor  for  the  forma- 

1  Hepburn  v.  Ellzey  (1805)  2  Cranch  445. 

a  Art.  Ill,  sec.  3,  par.  I.  3  Hoe  v,  Mamieson  (1897)  166 U.  S.  395. 

4  DeGeofroy  v.  Riggs  (1890)  133  U.  S.  258. 

s  See  for  a  more  detailed  account  Curtis 's  History  of  the  Constitution, 
vol.  i,  pp.  291  to  309. 


308       THE  AMERICAN  CONSTITUTION     §  106 

tion  of  States  by  Congress,  it  would  seem  that  the  cessions 
of  territory  to  the  national  government  and  acceptance 
thereof  by  the  representative  of  the  States  upon  the  terms 
stated  by  Congress  constituted  a  delegation  of  authority  to 
Congress  to  receive  and  govern  such  territory,  and  to  erect 
States  therein.  This,  however,  was  very  much  doubted,1 
and  one  of  the  first  resolutions  presented  to  the  Constitu- 
tional Convention  was  that  provision  ought  to  be  made  for 
the  admission  of  States  "with  the  consent  of  a  number  of 
voices  in  the  national  legislature  less  than  the  whole."2 
The  provision  with  regard  to  the  admission  of  new  States 
which  was  finally  incorporated  into  the  Constitution  is  as 
follows:  "New  States  may  be  admitted  by  Congress  into 
the  Union;  but  no  new  States  shall  be  formed  or  erected 
within  the  jurisdiction  of  any  other  States;  nor  any  State 
be  formed  by  the  junction  of  two  or  more  States  or  parts  of 
States,  without  the  consent  of  the  legislatures  of  the  States 
concerned  as  well  as  of  Congress."3 

The  ordinary  procedure  for  the  admission  of  States  is  for 
the  people  of  a  territory  to  petition  Congress  to  be  admitted 
as  a  State.  If  Congress  approves  there  is  passed  what  is 
known  as  an  "enabling  act,"  which  makes  provision  for  the 
framing  of  a  constitution,  and  often  sets  forth  requirements 
which  must  be  met.  If  Congress  is  satisfied  with  the  con- 
stitution which  is  framed  the  territory  is  declared  to  be  a 
State  and  a  member  of  the  Union.  Sometimes,  however,  a 
constitutional  convention  has  assembled  in  a  territory,  and 
a  constitution  has  been  submitted  to  the  people  of  the  terri- 
tory and  adopted  without  previous  authorization  from 
Congress.  In  such  a  case  if  Congress  admits  the  territory 
as  a  State  the  proceedings  are  as  effective  as  if  the  other 
course  had  been  adopted. 

Since  by  the  Constitution  Congress  is  given  absolute 
power  with  regard  to  the  admission  of  States,  it  may  clearly 
impose  such  conditions  precedent  to  admission  as  it  sees  fit, 

1  The  Federalist,  No.  38. 

a  Farrand,  The  Records  of  the  Federal  Convention,  vol.  i,  p.  22. 

s  Art.  IV,  sec.  3,  par.  i. 


§  io6  FEDERAL  TERRITORY  309 

and  if  these  conditions  are  not  met  it  may  refuse  to  admit 
the  petitioning  territory.1  But  in  Coyle  v.  Oklahoma2  the 
question  was  raised  whether  by  the  terms  of  the  enabling 
act,  accepted  and  adopted  by  the  State  in  order  to  gain 
admission  to  the  Union,  a  State  may  be  deprived  of  the  right 
to  exercise  powers  which  are  possessed  by  the  original  States. 
The  court  held  that  it  cannot  be  so  deprived.  The  power 
of  Congress  is,  declared  the  court,  to  admit  "new  States 
.  .  .  into  this  Union."  "The  definition  of  'a  State'  is 
found  in  the  powers  possessed  by  the  original  States  which 
adopted  the  Constitution,"  and  "'this  Union'  was  and  is  a 
union  of  States,  equal  in  power,  dignity  and  authority,  each 
competent  to  exert  that  residuum  of  sovereignty  not  dele- 
gated to  the  United  States  by  the  Constitution  itself."3 
The  court  quoted  with  approval  the  words  of  Chief  Justice 
Chase  that ' '  the  Constitution  in  all  of  its  provisions  looks  to 
an  indestructible  Union  composed  of  indestructible  States."4 
To  the  suggestion  that  the  adoption  of  the  provisions  of  the 
enabling  act  might  be  looked  upon  as  a  contract  which  the 
State  was  forbidden  by  the  Constitution  to  impair,  the 
court  said  that  the  contract  "here  sought  to  be  enforced  is 
one  having  no  sanction  in  that  instrument."5 

There  was  a  discussion  in  the  Constitutional  Convention 
to  which  the  court  did  not  refer,  but  which  is  certainly  inter- 
esting in  this  connection.  In  the  provision  for  the  admission 
of  new  States  reported  by  the  Committee  of  Detail  it  was 
declared  that,  "if  the  admission  be  consented  to,  the  new 
States  shall  be  admitted  on  the  same  terms  with  the  original 
States."  Gouverneur  Morris  moved  to  strike  out  this  pro- 
vision because  "he  did  not  wish  to  bind  down  the  legislature 
to  admit  western  States  on  the  terms  here  stated."  Madi- 

1  Coyle  v.  Oklahoma  (1911)  221  U.  S.  559,  568,  569. 

*  (1911)  221  U.  S.  559.     The  question  here  was  whether  the  state 
capital  could  be  moved  by  vote  of  the  people  of  the  State,  though  the 
enabling  act,  adopted  by  the  people  as  a  condition  precedent  to  the 
admission  of  the  State,  forbade  it. 

<  Ibid.,  566,  567. 

*  Texas  v.  White  (1868)  7  Wallace  700,  725. 

s  Coyle  v.  Oklahoma  (1911)  221  U.  S.  559,  578. 


310       THE  AMERICAN  CONSTITUTION     §  106 

son  insisted  "that  the  western  States  neither  would  nor 
ought  to  submit  to  a  Union  which  degraded  them  from  an 
equal  rank  with  the  other  States."  Mason  and  Sherman 
agreed  with  Madison,  but  Langdon  was  in  favor  of  the  mo- 
tion, and  Williamson  "was  for  leaving  the  legislature  free." 
Morris's  motion  was  carried  by  nine  States  to  two.1  It 
would  seem  from  this  debate  and  vote  that  it  was  the  inten- 
tion of  the  framers  of  the  Constitution  to  leave  it  in  the 
power  of  Congress  to  admit  to  the  Union  States  which 
should  not  have  an  equality  of  rights  with  the  original 
States.  However,  Congress  has  never  professed  to  assume 
to  admit  States  on  a  footing  of  less  dignity  than  those 
which  made  up  the  original  Union.  In  admitting  Vermont 
and  Kentucky  in  1791  and  1792  it  declared  that  each  was 
admitted  "  as  a  new  and  entire  member  of  the  United  States 
of  America,"  and  in  admitting  Tennessee  it  used  the  lan- 
guage "on  an  equal  footing  with  the  original  States  in  all 
respects  whatever,"  which  language  was  in  substance  re- 
peated in  all  subsequent  admission  acts,  including  the 
Oklahoma  act.  Earlier  statements  of  the  Supreme  Court 
also  show  that  that  tribunal  has  uniformly  held  the  opinion 
that  States  can  only  be  admitted  upon  an  equal  footing  with 
all  of  the  other  members  of  the  Union. 2  The  interpretation 
put  upon  the  Constitutional  provision  with  regard  to  the 
admission  of  States  is  clearly  a  wise  one,  and  also  constitutes 
an  entirely  reasonable  construction  of  the  language  actually 
used,  notwithstanding  the  fact  that  the  framers  of  the 
Constitution  seemed  to  think  that  they  had  given  to  Con- 
gress a  greater  power.  It  follows  then  that,  even  if  a 
provision  has  been  incorporated  into  the  State  constitution 
excluding  it  from  the  exercise  of  certain  normal  state 
powers,  this  may  later  be  amended  by  the  people  of  the  State 
in  the  ordinary  way. 3 

1  Farrand,  The  Records  of  the  Federal  Convention,  vol.  ii,  pp.  188,  454. 

2  Pollard's  Lessee  v.  Hagan  (1845)  3  Howard  212;  Withers  v.  Buckley 
(1857)20  Howard  84,  92,  93;  Escanaba  Co.  v.  Chicago  (1882)  107  U.  S. 
678,  688. 

3  "A  constitution  thus  supervised  by  Congress  would,  after  all,  be  a 


§  io6  FEDERAL  TERRITORY  311 

The  principle  enunciated  in  the  Coyle  case  has  been  ap- 
proved and  acted  upon  by  the  Supreme  Court  in  several 
subsequent  cases.  The  Ordinance  for  the  Government  of 
the  Northwest  Territory  contained  certain  provisions  which 
it  is  declared  shall  constitute  articles  of  compact  between 
the  original  States  and  the  people  and  States  in  the  territory 
"unalterable  except  by  common  consent,"  but  the  Supreme 
Court  has  held  that  they  "ceased  to  be  .  .  .  obligatory 
upon  such  States  from  and  after  their  admission  into  the 
Union  as  States."1  In  a  later  case  from  Oklahoma  it  was 
contended  that  a  State  statute  providing  for  separate  coaches 
on  trains  for  white  and  colored  passengers  was  invalid 
because,  among  other  grounds,  it  conflicted  with  the  en- 
abling act  passed  in  connection  with  the  admission  of  that 
State,  but  the  court  held  that  after  admission  Oklahoma  had 
the  same  power  to  enact  police  regulations  as  other  States. 2 

It  is  to  be  born  in  mind,  however,  that  the  restrictions 
upon  State  action  contained  in  an  enabling  act,  and  adopted 
by  the  State  in  order  to  gain  admission  to  the  Union,  wThich 
are  not  binding  upon  the  State  are  such  as  attempt  to  de- 
prive it  of  powers  which  the  original  States  possess  under  the 
Constitution.  When  such  restrictions  are,  on  the  other 
hand,  in  a  field  which  was  surrendered  to  the  national 
government  by  the  Constitution,  they  are  as  valid  as  con- 
gressional legislation  in  the  usual  form  would  be  on  the 
same  subjects.  This  was  recognized  and  the  distinction 
carefully  pointed  out  in  the  Coyle  case,  where  the  court  said : 

"  It  may  well  happen  that  Congress  should  embrace  in  an 
enactment  introducing  a  new  State  into  the  Union  legisla- 
tion intended  as  a  regulation  of  commerce  among  the 
States,  or  with  Indian  tribes  situated  within  the  limits  of 
such  new  States,  or  regulations  touching  the  sole  care  and 

constitution  of  a  State,  and  as  such  subject  to  alteration  and  amend- 
ment by  the  State  after  admission.  Its  force  would  be  that  of  a  state 
constitution,  and  not  that  of  an  Act  of  Congress."  Coyle  v.  Oklahoma 
(191 1)  221  U.S.  559,568. 

1  Cincinnati  v.  Louisville  &  N.  R.  R.  Co.  (1912)  223  U.  S.  390. 

*  McCabe  v.  Atchison  T.  &  S.  F.  Ry.  Co.  (1914)  235  U.  S.  151. 


312       THE  AMERICAN  CONSTITUTION     §  107 

disposition  of  the  public  lands  or  reservations  therein, 
which  might  be  upheld  as  legislation  within  the  sphere  of 
the  plain  power  of  Congress.  But  in  every  such  case  such 
legislation  would  derive  its  force  not  from  any  agreement 
or  compact  with  the  proposed  new  State,  nor  by  reason  of 
its  acceptance  of  such  enactment  as  a  term  of  admission, 
but  solely  because  the  power  of  Congress  extended  to 
the  subject,  and,  therefore,  would  not  operate  to  restrict 
the  State's  legislative  power  in  respect  of  any  matter 
which  was  not  plainly  within  the  regulating  power  of 
Congress."1 

So  the  disposition  of  the  public  lands  may  be  controlled,2 
regulation  of  interstate  commerce  may  be  provided  for,3 
and  provision  may  be  made  for  the  protection  of  the  In- 
dians.4 In  this  connection  the  case  of  Ervien  v.  United 
States5  is  interesting.  In  the  enabling  act  for  the  admission 
of  New  Mexico  provision  was  made  for  the  grant  of  certain 
public  lands  to  the  State  to  be  held  in  trust  for  enumerated 
purposes,  and  it  was  made  the  duty  of  the  Attorney-General 
of  the  United  States  to  enforce  such  trusts  by  appropriate 
proceedings.  The  State  attempted  to  use  three  per  cent, 
of  the  proceeds  from  the  trust  property  to  advertise  the 
natural  resources  of  the  State.  The  court  without  citation 
of  authority,  and  with  very  little  discussion  held  that  this 
was  contrary  to  the  provisions  of  the  trust  and  that  it  could 
be  enjoined.  However,  as  the  provisions  in  question  had  to 
do  with  the  public  lands,  the  disposition  of  which  is  en- 
trusted to  Congress  by  the  Constitution,  the  decision  would 
seem  to  be  entirely  justified  upon  the  principles  above 
discussed. 

§107.     Status  and  Control  of  Indians.    The  only  provisions 
in  the  Constitution  with  regard  to  Indians  are  those  which 

1  Coyleu.  Oklahoma  (1911)  221  U.  S.  559,  574. 
a  Pollards  Lessee  v.  Hagan  (1845)  3  Howard  212. 
3  Williamette  Iron  Bridge  Co.  v.  Hatch  (1888)  125  U.  S.  I. 
*Ex  parte  Webb  (1912)  225  U.  S.  663;  United  States  v.  Sandoval 
(1913)  231  U.  S.  28. 
S(i9i9)  251  U.  S.  41. 


§  lo;  FEDERAL  TERRITORY  313 

exclude  them  from  the  enumerations  upon  which  direct  taxes 
and  representation  in  Congress  are  based,1  and  the  com- 
merce clause,  which  gives  Congress  "power  to  regulate 
commerce  with  foreign  nations  and  among  the  several 
States,  and  with  the  Indian  tribes."2  These  leave  un- 
touched the  general  field  of  constitutional  power  to  deal 
with  Indian  affairs,  and  it  has  been  necessary  for  the  Su- 
preme Court  to  build  up  here  a  very  considerable  body  of 
unwritten  constitutional  law. 

In  the  first  place  what  is  the  status  of  Indian  tribes  ?  Here 
we  get  a  little  help  from  the  commerce  clause,  since  we  see 
from  the  language  there  used  that  Indian  tribes  are  neither 
classed  as  nations  nor  as  States.  In  Cherokee  Nation  v. 
Georgia*  an  Indian  tribe  sought  to  sue  the  State  of  Georgia, 
but  the  Supreme  Court  held  that  under  the  terms  of  the 
judiciary  article  an  Intjian  tribe  is  not  a  foreign  nation,  nor 
is  it  a  State  as  that  word  is  used  in  the  Constitution. 
Chief  Justice  Marshall  said  that ' '  they  may  more  correctly, 
perhaps,  be  denominated  domestic  dependent  nations.  .  .  . 
they  are  in  a  state  of  pupilage.  Their  relation  to  the  United 
States  resembles  that  of  a  ward  to  his  guardian."4  In  the 
next  year  the  Supreme  Court  declared  that  the  State  of 
Georgia  had  no  constitutional  right  to  legislate  for  the 
territory  occupied  by  the  Cherokee  nation,  reserved  to  it  by 
treaties  first  with  the  British  Crown,  and  later  with  the 
Confederacy,  and  finally  with  the  United  States  after  the 
adoption  of  the  Constitution.  Marshall  declared  that, 

"The  Cherokee  nation,  then,  is  a  distinct  community, 
occupying  its  own  territory,  with  boundaries  accurately 
described,  in  which  the  laws  of  Georgia  can  have  no  force, 
and  which  the  citizens  of  Georgia  have  no  right  to  enter, 
but  with  the  assent  of  the  Cherokees  themselves,  or  in 
conformity  with  treaties,  and  with  the  acts  of  Congress. 
The  whole  intercourse  between  the  United  States  and 
1  Art.  I,  sec.  2,  par.  3  and  Amendment  XIV,  sec.  2.    See  sec.  63. 
3  Art.  I,  sec.  8,  par.  3.    See  sec.  89. 
3  (1831)  5  Peters  i. 
,  16. 


3H       THE  AMERICAN  CONSTITUTION     §  107 

this  nation  is,  by  our  Constitution  and  laws,  vested  in  the 
government  of  the  United  States."1 

So,  when  Indian  tribes  have  by  treaty  agreed  to  relinquish 
land  within  a  State  and  move  to  other  territory,  state 
authorities  cannot  take  action  to  enforce  the  agreement,  but 
the  enforcement  lies  entirely  with  the  national  government2; 
nor  can  a  State  tax  the  property  of  Indians  who  have  not 
been  incorporated  into  the  body  of  its  citizens.3  Indians 
maintaining  their  tribal  organization  "owe  no  allegiance  to 
the  States,  and  receive  from  them  no  protection."4 

During  the  colonial  days  the  relations  with  the  Indians 
were  determined  by  treaties  made  with  them  by  the  British 
Crown.  This  practice  was  continued  under  the  Confederacy 
and  by  the  United  States  after  the  adoption  of  the  Constitu- 
tion. But  from  the  earliest  days  of  our  present  government 
Congress  has  also  legislated  on  this  subject.  In  1802  a 
comprehensive  act  was  passed  by  Congress,  defining  the 
territories  of  Indian  tribes  as  established  by  treaties,  regulat- 
ing entrance  into  such  territories  and  trade  with  the  Indians, 
providing  for  the  punishment  of  those  committing  offenses 
against  friendly  Indians,  and  for  rendering  material  assist- 
ance to  such  Indians.  There  is  no  provision,  however,  in 
that  statute  for  interference  with  the  internal  affairs  of 
Indian  tribes,  and  it  is  declared  that  if  Indians  shall  cross 
the  boundaries  of  States  or  territories  and  commit  offenses 
such  matters  are  to  be  reported  to  their  tribes,  and  only  if 
the  tribes  refuse  to  make  satisfaction  is  the  President  to 
"take  such  steps  to  compel  satisfaction  as  may  be  neces- 
sary."5 

In  1871  Congress  by  statute  declared  that  thereafter'  no 
Indian  nation  or  tribe  within  the  territory  of  the  United 
States  should  be  recognized  as  a  power  with  which  the 

1  Worcester  v.  Georgia  (1832)  6  Peters  515,  560. 
a  Fellows  v.  Blacksmith  (1856)  19  Howard  366. 

3  Kansas  Indians  (1866)  5  Wallace  737;  New  York  Indians  (1866)  5 
Wallace  761. 

4  United  States  v.  Kagama  (1886)  118  U.  S.  375,  384. 
s  Act  of  March  30,  1802,  2  Stat.  139. 


§  io;  FEDERAL  TERRITORY  315 

United  States  could  contract  by  treaty,  although  all  exist- 
ing treaties  were  preserved  in  force.1 

In  1885  a  congressional  statute  was  passed  which  made 
Indians  criminally  liable  before  the  federal  courts  for  certain 
offenses  committed  against  each  other  as  well  as  against 
other  persons,  whether  committed  within  or  without  Indian 
territory.2  The  constitutionality  of  this  legislation  was 
attacked  in  United  States  v.  Kagama,3  but  the  Supreme 
Court  was  unanimous  in  upholding  it.  The  Indians  are 
within  the  geographical  limits  of  the  United  States,  and  all 
territory  within  such  limits  must  be  under  the  jurisdiction 
either  of  the  States  or  of  the  United  States.  It  has  been  de- 
clared, as  we  have  seen,  that  lands  reserved  to  the  Indians 
are  not  within  the  jurisdiction  of  the  States.  The  relation 
of  the  Indian  tribes  to  the  people  of  the  United  States  has, 
says  the  court,  always  been ' '  an  anomalous  one  and  of  a  com- 
plex character."  Although  they  were  at  first  dealt  with  as 
partaking  somewhat  of  the  character  of  separate  peoples,  and 
left  to  deal  with  their  internal  affairs,  yet,  declares  the  court, 

"These  Indian  tribes  are  wards  of  the  nation.  They  are 
communities  dependent  on  the  United  States.  .  .  .  From 
their  very  weakness  and  helplessness,  so  largely  due  to 
the  course  of  dealing  of  the  Federal  Government  with 
them  and  the  treaties  in  which  it  has  been  promised, 
there  arises  the  duty  of  protection,  and  with  it  the  power. 
.  .  .  The  power  of  the  General  Government  over  these 
remnants  of  a  race  once  powerful,  now  weak  and  Dimin- 
ished in  numbers,  is  necessary  to  their  protection,  as  well 
as  to  the  safety  of  those  among  whom  they  dwell.  It 
must  exist  in  that  government,  because  it  never  has 
existed  anywhere  else,  because  the  theatre  of  its  exercise 
is  within  the  geographical  limits  of  the  United  States, 
because  it  has  never  been  denied,  and  because  it  alone 
can  enforce  its  laws  on  all  the  tribes."4 

1  U.  S.  Rev.  Stat.  sec.  2079. 

3  Act  of  March  3,  1885,  23  Stat.  362. 

3(1886)  ii8U.  S.  375. 

*  Ibid .,  383  to  385.  Indian  legislation  may  abrogate  former  treaties  with 


316       THE  AMERICAN  CONSTITUTION     §  107 

We  have  here  a  very  interesting  development  in  theory  and 
practice  with  regard  to  the  status  and  control  of  Indian 
tribes.1 

The  provision  of  the  Fourteenth  Amendment  to  the  effect 
that  "all  persons  born  ...  in  the  United  States,  and  sub- 
ject to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside,"2  does  not 
apply  to  an  Indian  born  a  member  of  one  of  the 
Indian  tribes,  for  it  is  held  that  he  is  born  subject  to  tribal 
jurisdiction  and  not  subject  to  the  jurisdiction  of  the 
United  States  within  the  meaning  of  the  Constitution.3 
The  general  provisions  for  naturalization  do  not  apply  to 
Indians,  since  they  are  confined  to  white  persons  or  persons 
of  African  decent.4  Many  provisions  have  been  made  for 
the  naturalization  of  certain  tribes  in  past  years,5  and  more 
recent  statutes  look  to  the  complete  absorption  of  the  In- 
dians into  the  general  body  of  citizens  within  a  compara- 
tively short  time.6 

The  question  of  the  rights  of  Indian  tribes  to  the  lands 
which  they  occupied  was  fully  considered  by  Chief  Justice 
Marshall  in  the  case  of  Johnson  v.  M'Intosh,7  and  the 
principles  there  laid  down  have  ever  since  been  accepted  as 
correct.  The  European  governments,  at  the  time  of  the 
discovery  of  America,  acted  upon  the  rule  that  discovery  of 
territory  followed  by  possession  vested  in  the  sovereign 
title  to  all  of  the  territory  in  question  subject  to  a  right  of 
possession  in  the  natives.  Since  title  vested  in  the  sovereign 

Indians.  Stephen  v,  Cherokee  Nation  (1899)  174  U.  S.  445;  Lone  Wolf 
v.  Hitchcock  (1903)  187  U.  S.  553. 

1  See  Cuthlert  W.  Ponred , '  'Nationals  without  a  Nation:  The  New 
York  State  Tribal  Indians,"  22  col.  L.  Rev.  97. 

a  For  a  discussion  of  this  clause  see  sec.  112. 

4  Elk  v.  Wilkins  (1884)  112  U.  S.  94.  See  also  Van  Dyne,  Citizenship 
of  the  United  States,  7,  8,  10,  13  to  15;  United  States  v.  Wong  Kim  Ark 
(1898)  169!!.  8.649,  693. 

4  Van  Dyne,  Citizenship  of  the  United  States,  58. 

s  Ibid.,  235  to  237. 

6  Act  of  April  26,  1906,  34  Stat.  137;  act  of  May,  1906,  834  Stat.  182. 

7  (1823)  8  Wheaton  543. 


§  107  FEDERAL  TERRITORY  317 

the  natives  might  not  convey  title,  while  the  sovereign 
might  do  so  subject  to  the  possessory  right  of  the  native 
occupants.  The  King  of  Great  Britain  by  proclamation  in 
1763  reserved  to  the  Indians,  subject  to  his  dominion  and 
protection,  all  of  the  western  lands  and  forbade  British 
subjects  from  making  any  purchases  of  such  lands  or  settling 
there.  After  the  Revolution  the  rights  of  the  Crown  or  of 
its  grantees  devolved  upon  the  States,  and  by  cession  of  the 
western  territories  there  was  transferred  to  the  United  States 
the  title  to  these  lands  subject  to  the  Indians'  right  of  occu- 
pancy, together  with  the  sole  privilege  of  extinguishing  such 
right.  It  was,  therefore,  held  that  a  person  could  not  ac- 
quire a  title  by  conveyance  from  Indians  of  land  occupied  by 
them.1  The  federal  government  has  in  form  at  least  re- 
spected the  proprietary  rights  of  the  Indians,  and  when 
their  lands  have  been  taken  the  government  has  obtained 
their  formal  consent  and  has  compensated  them  in  money  or 
other  land.  While  maintaining  their  tribal  relations  the 
Indians'  possessory  right  to  land  is  held  to  vest  in  the 
tribe  and  not  in  the  individuals,  but  it  has  been  held  that 
Congress  may  legislate  with  regard  to  Indian  lands,  and 
may  provide  for  their  being  divided  among  the  Indians  of  the 
various  tribes  and  held  thereafter  in  severalty. 2  Provision 
has  now  been  made  for  the  division  of  practically  all  of  the 
Indian  lands,  though  for  twenty-five  years  after  such  divi- 
sion the  United  States  holds  the  lands  apportioned  in  trust 
for  the  allottees. 3 

1  This  proposition  had  previously  been  enunciated  by  Marshall  in 
Fletcher  v.  Peck  (1810)  6  Cranch  87,  though  without  any  argument. 

2  Cherokee  Nation  v,  Hitchcock  (1902)  187  U.  S.  294;  Lone  Wolf  v. 
Hitchcock  (1903)  187  U.  S.  553. 

3  See  act  of  Feb.  8,  1887,  24  Stat.  388  and  act  of  June  28,  1898,  30 
Stat.  495. 


CHAPTER   XI 

CITIZENSHIP   AND   NATURALIZATION 

§108.  Dual  Citizenship  Recognized  by  the  Constitution. 
From  the  outset  the  Constitution  has  clearly  recognized  a 
dual  citizenship,  citizenship  of  the  United  States  and 
citizenship  of  a  particular  State.1  In  the  "privileges  and 
immunities"  clause  state  citizenship  was  recognized,2  and 
this  was  also  true  in  article  III,  section  2  with  regard  to  the 
jurisdiction  of  the  federal  courts. 3  On  the  other  hand  it  is 
provided  in  article  I,  section  2,  that  a  Representative  must 
have  been  a  citizen  of  the  United  States  for  seven  years,  in 
article  I,  section  3  that  a  Senator  must  have  been  a  citizen 
of  the  United  States  for  nine  years,  and  in  article  II,  sec- 
tion I,  that  the  President  must  be  "a  natural  born  citizen 
or  a  citizen  of  the  United  States  at  the  time  of  the  adoption 
of  the  Constitution." 

It  is  clear  at  the  present  day  that  if  either  is  ' '  paramount 
and  dominant"  it  is  the  citizenship  of  the  Union.4  Since 
the  adoption  of  the  Fourteenth  Amendment  there  is  no  con- 
stitutional basis  for  Calhoun's  view  that  federal  citizenship 
is  subordinate  to  and  derivative  from  State  citizenship.5 

1  In  Pomeroy's  Constitutional  Law,  p.  48,  it  is  declared  that  there  was 
no  United  States  citizenship  under  the  Articles  of  Confederation.  This 
seems  a  justifiable  conclusion,  but  see  Justice  Curtis's  view  contra  in 
Dred  Scott  v.  Sandford  (1856)  19  Howard  393,  572. 

3  See  sec.  204.  3  See  sec.  44. 

4  In  Selective  Draft  Cases  (1918)  245  U.  S.  366,  369,  Chief  Justice 
White,  writing  for  a  unanimous  court,  declared:  The  Fourteenth  Amend- 
ment has  "completely  broadened  the  national  scope  of  the  government 
under  the  Constitution  by  causing  citizenship  of  the  United  States  to  be 
paramount  and  dominant,  instead  of  being  subordinate  and  derivative. " 

s  Calhoun's  Works,  vol.  ii,  p.  242,  quoted  by  Justice  Field  in  Slaughter 
House  Cases  (1872)  16  Wallace  36,  94. 

3i8 


§  109  CITIZENSHIP  319 

It  is  also  clear  that,  even  before  the  Fourteenth  Amendment 
was  added  to  the  Constitution,  a  person's  duty  as  a  citizen 
of  the  United  States  was  not  "subordinate"  to  his  duty  as  a 
citizen  of  a  State.  Quite  the  reverse  has  always  been  true. 
The  Constitution  was  framed  and  adopted  with  a  view  to 
instituting  a  government  that  should  operate  directly  upon 
the  people  of  the  United  States,  and  not  indirectly  through 
separate  State  sovereignties.  It  and  laws  and  treaties  made 
in  pursuance  of  its  provisions  were  declared  to  be  the  su- 
preme law  of  the  land.  The  federal  government  had  the 
right  to  demand  obedience  to  its  lawful  mandates,  and  the 
people  in  return  had  the  right  to  insist  upon  protection. 
The  tie  of  political  allegiance  was  created  between  the 
people  and  the  Union.  If  a  constitutional  command  of  the 
federal  government  conflicted  with  a  command  of  the 
State  the  citizen  was  under  a  duty  to  obey  the  former. 

§109.  United  States  Citizenship  Originally  Derived  from 
State  Citizenship.  But  it  would  seem  that,  before  the  adop- 
tion of  the  Fourteenth  Amendment,  United  States  citizen- 
ship, except  in  cases  of  naturalization,  was  derived  from 
State  citizenship.  Chief  Justice  Taney  in  the  famous  case 
of  Dred  Scott  v.  Sandford1  said  that  "every  person,  and  every 
class  and  description  of  persons,  who  were  at  the  time  of  the 
adoption  of  the  Constitution  recognized  as  citizens  in  the 
several  States,  became  also  citizens  of  the  new  political 
body;  but  none  other."  Justice  Curtis  in  the  same  case, 
admitting  the  proposition  just  stated,  raises  the  question 
whether  the  federal  government  has  been  given  power  to 
determine,  "What  native-born  persons  should  be  citizens 
of  the  United  States?"2  After  an  examination  of  the  sub- 
ject he  holds  it  to  be  a  "necessary  conclusion"  that  "those 
persons  born  within  the  several  States,  who,  by  force  of  their 
several  constitutions  and  laws,  are  citizens  of  the  State,  are 
thereby  citizens  of  the  United  States. " 3  This  conclusion  he 
bases  upon  the  following  grounds :  First,  that  the  power ' '  of 

1  (1856)  19  Howard  393,  406. 
3  Ibid. ,  579. 
J  Ibid.,  582. 


320       THE  AMERICAN  CONSTITUTION     §  109 

establishing  a  uniform  rule  of  naturalization,  was  granted" 
to  the  central  government,  "and  here  the  grant,  according  to 
its  terms,  stopped.  Construing  a  Constitution  containing 
only  limited  and  defined  powers  of  government,  the  argu- 
ment derived  from  this  definite  and  restricted  power  to 
establish  a  rule  of  naturalization,  must  be  admitted  to  be 
exceedingly  strong."  Second,  article  IV,  declares  that 
1 '  citizens  of  each  State  shall  be  entitled  to  all  the  privileges 
and  immunities  of  citizens  of  the  several  States."  Here 
privileges  and  immunities  are  granted  to  be  enjoyed 
throughout  the  United  States.  Those  who  are  to  enjoy 
them  are  described  as  citizens  of  each  State. 

1 '  It  would  seem  that  if  it  had  been  intended  to  constitute 
a  class  of  native-born  persons  within  the  States,  who 
should  derive  thoir  citizenship  of  the  United  States  from 
the  action  of  the  Federal  government,  this  was  an  occasion 
for  referring  to  them.  It  cannot  be  supposed  that  it  was 
the  purpose  of  this  article  to  confer  the  privileges  and 
immunities  of  citizens  in  all  the  States  upon  persons  not 
citizens  of  the  United  States.  And  if  it  was  intended  to 
secure  those  rights  only  to  citizens  of  the  United  States, 
how  has  the  Constitution  here  described  such  persons? 
Simply  as  citizens  of  each  State." 

Third,  although  suffrage  is  not  inseparable  from  citizenship 
it  is  one  of  the  important  marks  of  citizenship. 

"Here,  again,  the  consideration  presses  itself  upon  us, 
that  if  there  was  designed  to  be  a  particular  class  of 
native-born  persons  within  the  States,  deriving  their 
citizenship  from  the  Constitution  and  laws  of  the  United 
States,  they  should  at  least  have  been  referred  to  as  those 
by  whom  the  President  and  House  of  Representatives 
were  to  be  elected,  and  to  whom  they  should  be  respon- 
sible. Instead  of  that,  we  again  find  this  subject  referred 
to  the  laws  of  the  several  States.  The  electors  of  Presi- 
dent are  to  be  appointed  in  such  manner  as  the  legislature 
of  each  State  may  direct,  and  the  qualifications  of  electors 


§  109  CITIZENSHIP  321 

of  members  of  the  House  of  Representatives  shall  be  the 
same  as  for  electors  of  the  most  numerous  branch  of  the 
State  Legislature." 

Justice  Curtis  concluded  that  since  Missouri  recognized 
free  negroes  as  citizens  they  thereby  became  citizens  of  the 
United  States,  and  were  clearly  entitled  to  the  privilege, 
given  to  the  citizens  of  each  State  by  the  Constitution,  to 
sue  citizens  of  other  States  in  the  federal  courts. 

The  Chief  Justice  held  that  free  negroes  were  not  recog- 
nized as  state  citizens  when  the  Constitution  was  adopted, 
that  no  free  negroes  became  citizens  of  the  United  States 
by  the  adoption  of  the  Constitution,  and  that  it  was  con- 
trary to  the  intention  oj  the  framers  of  the  Constitution 
that  any  State  should  have  the_.power,  by  conferring  state 
citizenship  upon  free  negroes,  to  invest  them  with  United 
States  citizenship-,  or  with  the  rights  of  citizens  throughout 
the  United  States  guaranteed  by  the  Constitution/  Three 
Justices,  Wayne,  Grier,  and  Daniel,  concurred  in  this  view. 
However,  the  Chief  Justice  and  Justices  Wayne,  Grier,  and 
Daniel  did  not  hold  that  United  States  citizenship  was  not 
derived  from  State  citizenship,  but  simply  held  that  it  was 
not  the  intention  of  those  adopting  the  Constitution  that  a 
State  should  have  power  to  confer  United  States  citizenship 
upon  free  negroes.  x  Justice  McLean  held  that  the  question 
of  citizenship  could  not  be  gone  into  by  the  Supreme  Court 
under  the  pleadings.  Three  Justices,  Catron,  Nelson,  and 
Campbell,  held  that  it  was  not  necessary  to  decide  this 

1  Justice  Curtis  seems  to  have  the  better  of  the  historical  argument. 
He  points  out  that  in  at  least  five  States  free  negroes  had  the  right  of 
suffrage  at  the  time  of  the  adoption  of  the  Constitution ;  that  free  negroes 
had  by  the  decisions  of  at  least  two  States  been  recognized  as  citizens; 
and  that  when  the  provision  in  the  Articles  of  Confederation,  which  was 
the  forerunner  of  article  IV,  section  2,  of  the  present  Constitution,  was 
before  the  Continental  Congress,  giving  to  "free  inhabitants  of  each 
State  privileges  and  immunities  in  other  States,"  it  was  proposed  to 
change  the  phrase  to  "free  white  inhabitants,"  which  proposal  was 
defeated.  See  also,  Patterson,  The  United  States  and  the  States  under  the 
Constitution  (26.  ed.),292;  "Emancipation  and  Citizenship,"  by  G.  E. 
Sherman,  15  Yale  Law  Jour.,  263. 


322       THE  AMERICAN  CONSTITUTION     §  no 

point,  holding  with  the  three  Justices  just  previously  named 
and  with  the  Chief  Justice  that  the  evidence  showed  that  - 
the  plaintiff  was  still  a  slave.    The  decision,  therefore,  stands  • 
on  the  latter  ground  as  it  was  the  only  ground  upon  which  a 
majority  agreed. 

It  seems  to  have  been  the  generally  accepted  view  before 
the  adoption  of  the  Fourteenth  Amendment  that,  except 
in  cases  of  naturalization,  United  States  citizenship  was 
derived  from  state  citizenship.  Story  says,  "Every  citizen 
of  a  State  is  ipso  facto  a  citizen  of  the  United  States. ' ' I 
Rawle  in  his  early  work2  says: 

The  citizens  of  each  State  constituted  the  citizens 
of  the  United  States  when  the  Constitution  was  adopted. 
The  rights  which  appertained  to  them  as  citizens  of 
those  respective  commonwealths  accompanied  them  in  the 
formation  of  the  great,  compound  commonwealth  which 
ensued.  They  became  citizens  of  the  latter,  without 
ceasing  to  be  citizens  of  the  former,  and  he  who  was  sub- 
sequently born  a  citizen  of  a  State,  became  at  the  mo- 
ment of  his  birth  a  citizen  of  the  United  States. 3 

§110.  Power  and  Effect  of  Naturalization.  Great  confu- 
sion and  no  little  opportunity  for  misunderstandings  be- 
tween the  States  had  resulted  from  the  fact  that  each  State, 
after  the  Declaration  of  Independence,  was  a  law  unto  itself 
in  the  matter  of  naturalization,  and  from  the  fact  that  there 

1  Story  on  the  Constitution,  sec.  1693. 

3  Rawle  on  the  Constitution,  86. 

s  In  the  debate  in  Congress  on  the  Fourteenth  Amendment  Mr. 
Johnson  said:  "The  decisions  of  the  courts,  and  the  doctrine  of  the 
commentators  is  that  every  man  who  is  a  citizen  of  a  State  becomes  ipso 
facto  a  citizen  of  the  United  States;  but  there  is  no  definition  as  to  how 
citizenship  can  exist  in  the  United  States  except  through  the  medium  of 
citizenship  in  a  State."  Van  Dyne,  Citizenship  of  the  United  States  11. 
Notice  the  statement  of  Chief  Justice  White  quoted  in  the  footnote 
above.  See  Tiedeman,  The  Unwritten  Constitution  of  the  United  States, 
94  et  seq.  In  Sergeant's  Constitutional  Law,  1 1 1 ,  the  author  says  with 
regard  to  article  IV,  "  This  citizenship  means  a  residence  or  domicile  in  a 
particular  State  by  one  who  is  a  citizen  of  the  United  States, "  but  there 
is  no  further  comment  on  this  subject. 


§iio  CITIZENSHIP  323 

was  great  diversity  in  the  state  enactments  on  this  subject. x 
To  remedy  this  difficulty  the  sole  power  of  naturalization 
was  given  to  Congress. 2  By  naturalization  under  Congres- 
sional legislation  persons  have  clearly  become  from  the  first 
citizens  of  the  United  States,  and  as  clearly,  it  would  seem, 
citizens  of  the  States  in  which  they  may  reside. 3  Natural- 
ization by  the  federal  government  may  be  of  individuals, 4  or 
of  classes  of  persons,  or,  by  the  admission  of  a  State,  of  all 
of  the  citizens  of  the  State,  or,  by  treaty,  of  designated 
persons  or  groups. 5 

The  general  provisions  for  naturalization  require  a  resi- 
dence within  the  United  States  of  five  years,  a  declaration  of 
an  intention  to  become  a  citizen  at  least  two  years  before  the 
applicant  is  admitted,  and  at  the  time  of  admission  a  de- 
claration in  open  court  that  he  will  support  the  Constitution, 
and  a  renunciation  of  all  other  allegiance. 6  Special  excep- 
tions are  made  in  favor  of  those  who  have  served  in  the 
army  and  navy,  and  who  have  been  seamen  on  American 
vessels. 7  An  alien  woman  who  marries  an  American  citizen 
and  who  might  lawfully  become  naturalized  thereby  be- 
comes an  American  citizen  herself8;  and  the  naturalization 

1  The  Federalist,  No.  42. 

3  Const,  of  U.  S.,  art.  I,  sec.  8,  par.  4.  In  1792  the  Supreme  Court 
held  that  under  the  Constitution  the  States  had  a  concurrent  right  of 
naturalization.  Collet  v.  Collet,  2  Dallas  294.  This  case  was  overruled 
on  this  point  in  Chirac  v.  Chirac  (1817)  2  Wheaton  259. 

3  "A  citizen  of  the  United  States  residing  in  any  State  of  the  Union 
is  a  citizen  of  the  State."    Chief  Justice  Marshall  in  Gassies  v.  Ballon 
(1832)  6  Peters  761.    See  also  the  earlier  case  of  Collet  v.  Collet  (1792) 
2  Dallas  294;  and  the  opinion  of  Justice  Curtis  in  Dred  Scott  v.  Sand- 
ford  (1856)  19  Howard  393,  571.     A  naturalized  citizen  of  the  United 
States  was  not  deprived  of  such  citizenship  by  the  attempted  seces- 
sion of  the  State  in  which  he  resided.     The  Peterhoff  (1866)  5  Wallace 
28,  60. 

4  Spratt  v.  Spratt  (1830)  4  Peters  393  contains  the  record  of  proceed- 
ings leading  up  to  a  certificate  of  citizenship  by  naturalization. 

s  See  Van  Duyne,  Citizenship  of  the  United  States,  chaps.  4  to  7. 
6  U.  S.  Rev.  Stat.,  sees.  2170,  act  of  June  29,  1906,  34  Stat.  596. 
'  U.  S.  Rev.  Stat.,  sees.  2166,  2174,  act  of  June  30,  1914,  38  Stat.  395, 
act  of  May  9,  1918,  40  Stat.  542. 

8  This  was  not  true  at  the  common  law,  Shanks  v.  Dupont  (1830)  3 


324       THE  AMERICAN  CONSTITUTION     §  in 

of  the  parent  carries  with  it  the  naturalization  of  minor 
children  dwelling  in  the  United  States. l  When  a  man  has 
declared  his  intention  to  become  a  citizen,  but  dies  before  he 
is  naturalized,  his  widow  and  minor  children  can  go  forward 
from  that  point  with  the  steps  necessary  for  naturaliza- 
tion.2 Alien  enemies  cannot  be  admitted  to  citizenship 
during  the  continuance  of  a  war,  unless  they  have  declared 
their  intention  to  become  citizens  at  least  two  years  and 
not  more  than  seven  years  before  the  beginning  of  the  war. 
By  order  of  the  President  persons  may  be  excepted  from 
these  provisions. 3  Only  aliens  who  are  white  or  of  African 
nativity  or  descent  can  be  naturalized.4  The  District 
Courts  of  the  United  States,  the  Supreme  Court  of  the  Dis- 
trict of  Columbia,  certain  territorial  courts,  and  courts  of 
record  of  the  States  are  given  jurisdiction  to  naturalize 
aliens. s  Certificates  of  citizenship  may  be  set  aside  on  the 
ground  that  they  were  procured  by  fraud  or  illegality. 6 

It  is  also  provided  by  national  legislation  that  persons  are 
citizens  of  the  United  States,  though  born  out  of  the  limits 
and  jurisdiction  of  the  United  States,  if  at  the  time  of  their 
birth  their  fathers  were  citizens  of  the  United  States  and  had 
at  some  time  resided  in  the  United  States. 7 

§111.     State  Citizenship  now  Derived  from  United  States 

Peters  242,  but  is  provided  for  by  U.  S.  Rev.  Stat.,  sec.  1994.  See  Van 
Duyne,  Citizenship  of  the  United  States,  chap.  3. 

'U.  S.  Rev.  Stat.,  sec.  2172. 

a  Act  of  June  29,  1906,  34  Stat.  596. 

3  Act  of  May  9,  1918,  40  Stat.  542.  Anarchists  and  polygamists 
cannot  be  naturalized.  Act  of  June  29,  1906,  34  Stat.  596. 

*  See  Van  Duyne,  Citizenship  of  the  United  States,  Part  II,  chap,  i; 
In  re  Halladjian  (1909)  174  Fed.  834;  United  States  v.  Balsara  (1910) 
1 80  Fed.  694;  In  re  Young  (1912)  198  Fed.  715;  Dow  v.  United  States 
(1915)  220  Fed.  145.  As  to  naturalization  of  those  who  are  "nationals" 
(see  sec.  1 14)  but  not  citizens,  see  In  re  Alverto  (1912)  198  Fed.  638;  In 
re  Lampito  (1916)  232  Fed.  382;  In  re  Mollari  (1916)  239  Fed.  416. 

s  Act  of  June  29,  1906,  34  Stat.  596. 

6  Act  of  June  29,  1906,  34  Stat.  596.    This  provision  is  constitutional. 
Johannessen  v.  United  States  (1912)  225  U.  S.  227;  Luria  v.  United 
States  (1913)  231  U.  S.  9. 

7  U.  S.  Rev.  Stat.  sec.  1993. 


§112  CITIZENSHIP  325 

Citizenship.  Since  the  adoption  of  the  Fourteenth  Amend- 
ment, declaring  that,  "All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdicton  thereof,  are 
citizens  of  the  United  States  and  of  the  States  wherein  they 
reside,"  there  is  no  doubt  that  State  citizenship  is  now  de- 
rived from  United  States  citizenship,  rather  than  United 
States  citizenship  from  citizenship  in  a  State.  The  Thir- 
teenth Amendment,  forbidding  slavery  or  involuntary 
servitude,  was  intended  to  safeguard  the  post-bellum  status 
of  the  negroes  as  freemen;  the  Fifteenth  Amendment  de- 
claring that  the  right  of  citizens  of  the  United  States  to 
vote  shall  not  be  denied  on  account  of  race,  color  or  previous 
condition  of  servitude,  was  intended  to  safeguard  their 
political  rights;  the  main  purpose  of  section  one  of  the 
Fourteenth  Amendment  was  undoubtedly  to  establish  the 
position  of  the  emancipated  negroes  as  citizens  of  the 
United  States  and  of  the  States  of  their  domiciles  and  to 
prevent  discrimination  against  them  by  the  States,  though 
the  section  obviously  has,  and  has  been  given,  a  much  wider 
application. 

§112.  Persons  Who  Become  Citizens  by  Birth.  It  is  to 
be  noted  that  only  "persons  born  ...  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof"  come 
within  the  operation  of  the  Fourteenth  Amendment  with 
regard  to  citizenship.  This  includes  not  only  children  of 
citizens,  and  former  slaves  and  their  children,  but  children 
born  to  aliens  as  well,  if  born  in  the  United  States  and  sub- 
ject to  their  jurisdiction.  Furthermore,  children  become 
citizens  by  birth,  though  their  parents  are  of  a  race  or 
nationality  which  precludes  them  from  naturalization. x  But 
certain  persons  though  within  the  territorial  limits  of  the 
United  States  are  not  within  its  jurisdiction.  This  is 
true  of  diplomatic  representatives  of  other  countries, 
alien  enemies  invading  the  country,  and  aliens  upon 
public  vessels  of  a  foreign  country  though  within  our 
territorial  waters.2  Indians  stand  in  a  rather  curious  and 

1  United  States  v.  Wong  Kim  Ark  (1898)  169  U.  S.  649. 
*  Ibid.,   693. 


326       THE  AMERICAN  CONSTITUTION     §  113 

anomalous  position.  During  all  of  the  early  part  of  our 
history  they  were  dealt  with  as  foreign  nations,  and  treaties 
were  made  with  them  in  that  capacity.  As  the  result  of 
later  developments  Congress  has  assumed  authority  to  leg- 
islate with  regard  to  them, x  but  as  long  as  they  continue  to 
owe  allegiance  to  tribal  organizations  they  are  held  not  to  be 
subject  to  the  jurisdiction  of  the  United  States  so  as  to  make 
them  citizens  by  birth  by  force  of  the  Fourteenth  Amend- 
ment. 2 

§113.  One  May  Be  a  United  States  Citizen  and  Not  a  Citizen 
of  a  State,  While  every  citizen  of  the  United  States  resident 
in  any  State  is  now  without  doubt  a  citizen  of  that  State  it  is 
perfectly  possible  for  a  person  to  be  a  citizen  of  the  United 
States  and  not  a  citizen  of  any  State,  as  when  he  resides  in 
one  of  the  territories,  or  is  born  abroad  of  a  father  who  is  a 
citizen,  and  continues  to  reside  abroad,  or  where  a  citizen 
of  the  United  States  and  of  a  State  takes  up  his  residence 
abroad,  when,  it  would  seem,  he  loses  his  state  citizenship.3 

United  States  v.  Wong  Kim  Ark  (1898)  169  U.  S.  649,  693.  See 
the  discussion  of  the  power  of  Congress  over  Indians  in  sec.  107. 

2  United  States  v.  Wong  Kim  Ark  (1898)  169  U.  S.  649,  693. 

3  Hammerstein  v.  Lyne  (1912)  200  Fed.  165.    In  the  Dred  Scott  case 
(1856)  19  Howard  393,  although  Chief  Justice  Taney  denied  that  a 
State  could,  from  classes  not  recognized  as  citizens  at  the  time  of  the 
adoption  of  the  Constitution,  create  state  citizens  who  would  thereby 
become  United  States  citizens  and  so  acquire  rights  guaranteed  to 
citizens  by  the  Constitution,  he  asserted  that  States  might  create  state 
citizens  who  would  not  be  United  States  citizens  (p.  405).    The  Four- 
teenth Amendment  does  not  deny  this  power,  so  that  States  may,  and 
in  some  cases  do,  confer  upon  aliens  rights  which  are  normal  incidents 
of  state  citizenship,  such  as  the  right  to  vote,  and  the  right  to  own  and 
inherit  personal  and  real  property.    Since  the  federal  government  has 
exclusive  power  of  naturalization,  and  since  a  naturalized  citizen  or  a 
citizen  born  within  the  United  States  and  subject  to  its  jurisdiction  is  a 
citizen  of  the  State  in  which  he  resides,  there  would  be  few  opportunities 
for  a  State  to  attempt  to  make  a  person  one  of  its  citizens  in  the  con- 
stitutional sense.     If,  however,  a  State  should  declare  by  legislation 
that  a  person  born  abroad,  whose  father  was  a  United  States  citizen  and 
had  resided  in  that  State,  should  be  a  citizen  of  that  State,  and  such 
person  should  assert  his  right  to  the  privileges  and  immunities  of  citizens 
in  another  State,  the  question  of  the  power  of  a  State  to  create  a  person 


§ii4  CITIZENSHIP  327 

§114.  Nationals  Who  Are  Not  Citizens.  It  is  further 
possible  for  one  to  owe  allegiance  to  the  United  States,  to  be 
subject  to  its  jurisdiction,  and  to  be  entitled  to  its  protec- 
tion— that  is,  to  be  a  national1 — and  yet  not  to  be  a  citizen. 
This  was  the  situation  occupied  by  free  negroes  before  the 
adoption  of  the  Fourteenth  Amendment,  according  to  the 
view  of  Chief  Justice  Taney  and  three  other  Justices  in 
Dred  Scott  v.  Sandford.2  By  treaty,  after  the  Spanish  War, 
the  Philippines  and  Porto  Rico  were  ceded  to  the  United 
States,  and  it  was  provided  that  the  civil  rights  and  political 
status  of  the  inhabitants  should  be  determined  by  Congress. 
By  congressional  legislation3  the  inhabitants  of  Porto  Rico 
and  of  the  Philippines  were  respectively  declared  to  be  citi- 
zens of  Porto  Rico  and  of  the  Philippines.  Clearly,  then, 
they  were  no  longer  aliens,  and  this  the  Supreme  Court 
declared  in  Gonzales  v.  Williams.*  But  neither  did  they 
become  citizens~^FTRF~TTntt^l"^^afes.s  Furthermore,  it 
would  seem  that  persons  born  in  Porto  Rico  and  the  Philip- 
pines after  their  annexation  did  not,  from  the  fact  that  they 
were  born  "subject  to  the  jurisdiction"  of  the  United  States, 
become  citizens  of  the  United  States,  for  the  Fourteenth 
Amendment  further  requires  that  persons  to  be  citizens  by 
birth  must  be  born  "in  the  United  States."  A  person  born 
in  territory  acquired  by  the  United  States  but  not  incor- 

one  of  its  citizens  in  the  constitutional  sense  would  be  raised.  There 
would  seem  to  be  nothing  in  the  Constitution  which  would  prevent  its 
doing  so. 

1  See  an  article  entitled  "American  Citizenship, "  by  D.  O.  McGovney, 
in  ii  Columbia  L.  Rev.,  231  and  326. 

2  (1856)  19  Howard  393,  already  discussed. 

3  Laws  of  1900,  chap.  191,  31  Stat.  79,  Laws  of  1902,  chap.  1369,  32 
Stat.  692. 

4  (1904)  192  U.  S.  i. 

s  In  re  Alverto  (1912)  198  Fed.  688.  Congress  by  an  Act  of  June  14, 
1902,  32  Stat.  386,  made  provision  for  issuance  of  passports  to  those 
owing  allegiance  to  the  United  States,  whether  citizens  or  not,  by  officers 
of  the  insular  possessions;  and  by  Act  of  June  29,  1906,  34  Stat.  606,  the 
right  to  naturalization  is  extended  to  those  owing  permanent  allegiance 
though  not  citizens,  showing  a  recognition  by  Congress  that  there  were 
persons  who  were  nationals  though  not  citizens. 


328       THE  AMERICAN  CONSTITUTION     §  115 

porated  into  the  United  States  is  probably  not  born  ' '  in  the 
United  States"  as  that  term  is  used  in  the  Constitution. 
"Here  there  is  a  limitation  to  persons  born  or  naturalized 
in  the  United  States,  which  is  not  extended  to  persons  born 
in  any  place  '  subject  to  their  jurisdiction,' "  said  a  Justice  of 
the  Supreme  Court1  in  commenting  upon  the  Fourteenth 
Amendment.  He  further  said  that  the  power  to  acquire 
territory  includes  the  power  to  determine  the  status  of  its 
inhabitants. 

' '  There  seems  to  be  no  middle  ground  between  this  posi- 
tion and  the  doctrine  that  if  their  inhabitants  do  not 
become,  immediately  upon  annexation,  citizens  of  the 
United  States,  their  children  thereafter  born,  whether 
savages  or  civilized,  are  such,  and  entitled  to  all  the 
rights,  privileges,  and  immunities  of  citizens.  If  such  be 
their  status  the  consequences  will  be  extremely  serious."2 

The  Justice  points  out  that  the  attitude  of  the  government 
has  never  supported  such  an  idea.  Here,  then,  we  have 
again  a  class  of  nationals  who  are  still  not  citizens  within 
the  meaning  of  the  Constitution.3 

§115.  Expatriation.  The  right  of  expatriation  without 
the  aid  of  statutory  provision  was  generally  denied  by  our 
courts,  although  asserted  by  some  of  our  statesmen.4  In 
1868,  however,  Congress  declared  by  statute  that  "the 
right  of  expatriation  is  a  natural  and  inherent  right  of  all 
people,"5  and  in  1907  Congress  expressly  provided  that  an 
American  citizen  shall  be  deemed  to  have  expatriated  him- 
self when  he  becomes  naturalized  in  a  foreign  state.6 

1  Downs  v.  Bidwell  (1901)  182  U.  S.  244,  251.  It  was  not  a  question  of 
citizenship  which  was  involved  in  the  decision,  but  the  question  was 
whether  the  constitutional  provision  that  taxes  must  be  uniform 
"throughout  the  United  S  tates"  applied  to  Porto  Rico.  The  court  held 
that  it  did  not.  See  sec.  102.  *  Ibid.,  279. 

3  By  Act  of  March  2,  1917,  39  Stat.  953,  United  States  citizenship  was 
conferred  upon  the  citizens  of  Porto  Rico. 

<  J.  B.  Moore,  "A  Hundred  Years  of  American  Diplomacy,"  14  Har- 
vard L.  Rev.,  165,  179.  *  U.  S.  Rev.  Stat.,  sec.  1999. 

6  Act  of  March  2,  1907,  34  Stat.  1228.     A  woman,  who  is  a  United 


§ii6  CITIZENSHIP  329 

§116.  Privileges  and  Immunities  of  State  Citizenship 
and  United  States  Citizenship  Are  Not  the  Same.  Although 
the  primary  purpose  intended  to  be  accomplished  by  the 
adoption  of  the  Thirteenth,  Fourteenth,  and  Fifteenth 
Amendments  was  undoubtedly  the  placing  of  the  negro 
upon  an  equal  footing  with  the  white  citizen,  nevertheless 
their  whole  spirit,  and  particularly  that  of  the  Fourteenth, 
show  also  a  wide  swing  of  the  pendulum  of  public  opinion  from 
its  attitude  at  the  time  of  the  adoption  of  the  Constitution 
and  of  the  first  ten  amendments.  At  the  time  when  the 
Constitution  was  adopted  there  was  great  fear  of  a  tyranni- 
cal central  government,  and  the  powers  of  that  government 
were  jealously  limited.  The  extreme  states-rights  doctrine 
finally  led  to  secession  and  the  bitter  struggle  of  the  Civil 
War.  At  the  close  of  that  struggle  the  fear  of  the  sovereign 
powers  of  the  States  was  naturally  uppermost  in  the  minds 
of  the  Congress  which  drafted  the  amendments  then 
proposed.  We  shall  later  consider  the  important  results  of 
the  "due  process"  and  "equal  protection"  clauses  of  the 
Fourteenth  Amendment, r  but  a  contention  based  upon  the 
provision  in  the  Fourteenth  Amendment  that,  "No 
State  shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the  United 
States"  was  early  presented  to  the  Supreme  Court,2 
which,  if  it  had  been  acted  upon  by  that  court  would 
have  reduced  the  States  to  practical  impotence.  The 
contention  was  briefly  this,  that  since  citizens  of  the-States 
were  by  the  Fourteenth  Amendment  first  of  all  United 
States  citizens  the  privileges  and  immunities  of  their  state 
citizenship  now  became  privileges  and  immunities  attached 
to  their  United  States  citizenship.  If  this  interpretation 
of  the  amendment  had  been  adopted  it  would  have  pre- 
vented the  States  from  abridging  any  rights  or  privilege 

States  citizen,  in  effect  expatriates  herself  when  she  marries  an  alien, 
for  by  such  marriage  she  takes  the  same  citizenship  as  that  of  her  hus- 
band. Mackenzie  v.  Hare  (1915)  239  U.  S.  299. 

1  See  chaps.  28  to  33. 

2  Slaughter  House  Cases  (1872)  16  Wallace  36. 


330       THE  AMERICAN  CONSTITUTION     §  116 

which  by  the  common  law,  or  by  the  constitutions  or  stat- 
utes of  the  States  had  been  recognized  as  incidents  of  state 
citizenship ;  and  it  would  further  have  allowed  Congress  to 
define  and  enforce  those  rights  under  the  last  section  of  the 
amendment  which  declares  that  "Congress  shall  have 
power  to  enforce  by  appropriate  legislation  the  provisions  of 
this  article." 

It  is  undoubtedly  true  that  many  who  took  part  in  fram- 
ing the  Fourteenth  Amendment  thought  that  it  wrought  a 
radical  change  in  the  constitutional  relations  of  the  States 
to  the  Union,  reducing  the  former  very  nearly  to  the  status 
of  counties  within  a  State1;  and  it  was  only  by  a  majority 
of  one  that  the  United  States  Supreme  Court  declared  itself 
against  an  interpretation  which  would  have  substantially 
done  away  with  the  dual  sovereignty  of  state  and  federal 
governments,  with  which  the  American  has  become  so 
familiar.  It  is  not  surprising  that  Justice  Miller,  in  pro- 
nouncing the  opinion  of  the  court2,  said, 

"We  do  not  conceal  from  ourselves  the  great  respon- 
sibility which  this  duty  devolves  upon  us.  No  questions 
so  far-reaching  and  pervading  in  their  consequences,  so 
profoundly  interesting  to  the  people  of  this  country,  and 
so  important  in  their  bearing  upon  the  relations  of  the 
United  States,  and  of  the  several  States  to  each  other  and 
to  the  citizens  of  the  States  and  of  the  United  States  have 
been  before  this  court  during  the  official  life  of  any  of  its 
present  members." 

Justice  Miller  first  points  out  that  the  Fourteenth  Amend- 
ment itself  recognizes  the  distinction  between  state  citizen- 
ship and  United  States  citizenship,  and  that  under  it  persons 
may  be  citizens  of  the  Union  without  being  citizens  of  any 
State.  He  then  reminds  us  that  only  privileges  and 
immunities  of  citizens  of  the  United  States  are  protected  by 
that  amendment. 

1  Flack,  The  Adoption  of  the  Fourteenth  Amendment. 

2  Slaughter  House  Cases  (1872)  16  Wallace  36,  67. 


§u6  CITIZENSHIP  331 

"The  argument,  however,  in  favor  of  the  plaintiffs 
rests  wholly  on  the  assumption  that  the  citizenship  is 
the  same,  and  the  privileges  and  immunities  guaranteed 
by  the  clause  are  the  same." 

Since  there  were  before  the  Fourteenth  Amendment  privi- 
leges and  immunities  of  state  citizenship  and  United  States 
citizenship  distinct  one  from  the  other,  Justice  Miller  con- 
cludes that  the  Fourteenth  Amendment  protects  only  the 
privileges  and  immunities  of  United  States  citizenship,  and 
does  not  affect  those  attaching  to  state  citizenship.  After 
pointing  out  what  the  results  of  a  contrary  decision  would 
be,  Justice  Miller  concludes  his  argument  as  follows1: 

"The  argument  we  admit  is  not  always  the  most  con- 
clusive which  is  drawn  from  the  consequences  urged 
against  the  adoption  of  a  particular  construction  of  an 
instrument.  But  when,  as  in  the  case  before  us,  these 
consequences  are  so  serious,  so  far-reaching  and  pervading, 
so  great  a  departure  from  the  structure  and  spirit  of  our 
institutions;  when  the  effect  is  to  fetter  and  degrade  the 
state  governments  by  subjecting  them  to  the  control  of 
Congress,  in  the  exercise  of  powers  heretofore  universally 
conceded  to  them  of  the  most  ordinary  and  fundamental 
character;  when  in  fact  it  radically  changes  the  whole 
theory  of  the  relations  of  the  State  and  Federal  govern- 
ments to  each  other  and  of  both  these  governments  to  the 
people;  the  argument  has  a  force  that  is  irresistible,  in 
the  absence  of  language  which  expresses  such  a  purpose 
too  clearly  to  admit  of  doubt." 

Four  justices2  dissented,  and  three  wrote  vigorous  dis- 
senting opinions.  The  gist  of  their  argument  is  that  if  the 
provision  of  the  amendment  under  consideration  only  pro- 
hibited the  abridgment  of  privileges  and  immunities 
already  inhering  in  United  States  citizenship  under  the 
Constitution,  this  provision  was  unnecessary  and  accom- 

1  Slaughter  House  Cases  (1872)  16  Wallace  36,  78. 

2  Chief  Justice  Chase  and  Justices  Field,  Bradley  and  Swayne. 


332       THE  AMERICAN  CONSTITUTION     §  117 

plished  nothing,  because  without  it  the  interference  by  a 
State  with  such  privileges  and  immunities  would  have 
been  unconstitutional.  This  conclusion  is  correct,  and  the 
provision  of  the  Fourteenth  Amendment  that  "No  State 
shall  make  or  enforce  any  law  which  shall  abridge  the  privi- 
leges or  immunities  of  citizens  of  the  United  States,"  as 
interpreted  by  the  majority  of  the  court,  is  merely  declara- 
tory of  what  would,  in  its  absence,  have  been  true  by 
implication. 

§117.  Guaranties  of  the  First  Eight  Amendments  Are  Not 
Privileges  and  Immunities  of  United  States  Citizenship.  A 
second  contention  based  on  the  "privileges  and  immuni- 
ties" clause  of  the  Fourteenth  Amendment,  which  had  far- 
reaching  possibilities,  was  first  presented  to  the  Supreme 
Court  in  1887,'  but  was  not  actually  settled  until  the  last 
year  of  the  nineteenth  century.2  The  first  eight  amend- 
ments to  the  Constitution,  adopted  shortly  after  the  na- 
tional government  was  formed,  constitute  a  Bill  of  Rights, 
guarantying  freedom  of  religion,  of  the  press,  of  speech,  of 
assembly,  and  of  petition,  and  the  right  to  bear  arms ;  guar- 
antying against  the  abuse  of  quartering  soldiers  upon 
civilians,  and  against  unreasonable  search  and  seizure; 
guarantying  in  cases  of  capital  and  infamous  crimes 
indictment  by  a  grand  jury,  confrontation  of  witnesses,  in- 
formation as  to  the  cause  of  accusation,  the  right  to 
compulsory  process  to  obtain  witnesses,  the  right  to  counsel, 
the  right  to  trial  by  jury  and  the  right  not  to  be  twice  put  in 
jeopardy;  guarantying  the  right  to  trial  by  jury  in  civil 
actions  where  the  value  in  controversy  exceeds  twenty 
dollars;  guarantying  against  excessive  bail,  excessive  fines, 
cruel  and  unusual  punishments ;  and  against  deprivation  of 
life,  liberty,  or  property  without  due  process  of  law,  and 
against  the  taking  of  private  property  for  public  use  without 
just  compensation.  Before  the  adoption  of  the  Fourteenth 
Amendment  it  had  been  repeatedly  decided  that  the  first 
eight  amendments  constituted  limitations  only  upon  the 

1  In  Spies  v.  Illinois  (1887)  123  U.  S.  131,  166. 
3  Maxwell  v.  Dow  (1900)  176  U.  S.  581. 


§ii8  CITIZENSHIP  333 

federal  government,  and  did  not  affect  the  States.1  It  was 
contended,  however,  that  the  privileges  and  immunities 
guarantied  by  the  first  eight  amendments  constituted 
privileges  and  immunities  of  citizens  of  the  United  States, 
and  that,  therefore,  the  States  were  by  the  Fourteenth 
Amendment  forbidden  to  abridge  these  privileges  and  im- 
munities. This  view  was  accepted  by  Justice  Harlan,2  but 
the  rest  of  the  court  held  the  deduction  upon  which  it  was 
based  to  be  unsound.  Speaking  for  the  majority  of  the 
court,  Justice  Peckham  said  of  the  privileges  and  immunities 
guarantied  by  the  first  eight  amendments3 : 

"  In  none  are  they  privileges  or  immunities  granted  and 
belonging  to  the  individual  as  a  citizen  of  the  United 
States,  but  they  are  secured  to  all  persons  as  against  the 
Federal  Government,  entirely  irrespective  of  such  citizen- 
ship. As  the  individual  does  not  enjoy  them  as  a  privilege 
of  citizenship  of  the  United  States,  therefore,  when  the 
Fourteenth  Amendment  prohibits  the  abridgment  by  the 
States  of  those  privileges  or  immunities  which  he  enjoys 
as  such  citizen,  it  is  not  correct  or  reasonable  to  say  that 
it  covers  and  extends  to  certain  rights  which  he  does  not 
enjoy  by  reason  of  his  citizenship,  but  simply  because 
those  rights  exist  in  favor  of  all  individuals  as  against 
federal  governmental  powers. 

It  might  have  been  further  said  that,  even  if  the  privileges 
and  immunities  of  the  first  eight  amendments  belonged  to 
United  States  citizenship,  they  were  guaranties  affecting 
federal  action,  and  could  only  be  abridged  by  a  State  if  a 
State  attempted  to  interfere  with  federal  action  in  one  of 
the  matters  covered  by  those  amendments. 

§  1 1 8 .  What  A  re  Privileges  and  Immunities  of  United  States 
Citizenship?  The  Supreme  Court  has  not  attempted  a  full 
definition  of  the  privileges  and  immunities  of  United  States 
citizenship,  but  it  has,  nevertheless,  pointed  out  from  time 
to  time  certain  rights  which  do  or  which  do  not  fall  within 

1  These  provisions  are  considered  more  fully  in  subsequent  chapters. 

2  Maxwell  v.  Dow  (1900)  176  U.  S.  581,  605.  3  Ibid.,  595. 


334       THE  AMERICAN  CONSTITUTION     §  118 

those  terms.  Certain  rights  arise  from  the  very  nature 
of  the  relationship  of  a  citizen  to  the  state  of  which  he  is  a 
member,  and  others  arise  from  certain  exclusive  powers 
granted  to  the  national  government.  Such  are  the  rights 

"to  come  to  the  seat  of  government,  to  transact  any 
business  he  may  have  with  it,  to  seek  its  protection,  to 
share  its  offices,  to  engage  in  administering  its  functions. 
He  has  the  right  of  free  access  to  its  seaports,  through 
which  all  operations  of  foreign  countries  are  conducted, 
to  the  sub-treasuries,  land  offices,  and  courts  of  justice 
in  the  several  States."1 

"Another  privilege  of  a  citizen  of  the  United  States  is  to 
demand  the  care  and  protection  of  the  Federal  Govern- 
ment over  his  life,  liberty,  and  property  when  on  the  high 
seas,  or  within  the  jurisdiction  of  a  foreign  government. 
Of  this  there  can  be  no  doubt,  nor  that  the  right  depends 
upon  his  character  as  a  citizen  of  the  United  States.  .  .  . 
The  right  to  use  the  navigable  waters  of  the  United 
States,  however  they  may  penetrate  the  territory  of  the 
several  States,  all  rights  secured  to  our  citizens  by  treaties 
with  foreign  nations,  are  dependent  upon  citizenship  of 
the  United  States,  and  not  citizenship  of  a  State."2 

The  right  of  a  natural  born  citizen  of  the  United  States  to  be 
a  candidate  for  the  presidency,  or  of  a  citizen  of  the  United 
States  for  nine  years  to  be  a  candidate  for  Senator,  or  of  a 
citizen  of  the  United  States  for  seven  years  to  be  a  candidate 
for  Representative,  are  clearly  privileges  of  United  States 
citizenship.3  The  right  granted  in  the  Fourteenth  Amend- 

1  Crandall  t>.  Nevada  (1867)  6  Wallace  35,  44. 

2  Slaughter  House  Cases  (1872)  16  Wallace  36,  79. 

3  But  the  right  to  vote  is  not  a  privilege  inherent  in  United  States 
citizenship.    Many  state  citizens  have  not  the  privilege  of  voting,  while 
some  States  allow  aliens  to  vote  before  naturalization.    Minor  v.  Happer- 
sett  (1874)  21  Wallace  162.    But  the  right  of  an  elector  of  the  most  nu- 
merous branch  of  the  state  legislature  to  vote  for  federal  Senators  and 
Representatives  is  given  by  article  I,  section  2,  and  by  the  Seventeenth 
Amendment,  and  this  right  may  be  protected  by  national  legislation. 
Ex  parte  Yarborough  (1884)  no  U.  S.  651. 


§  ii9  CITIZENSHIP  335 

ment  to  a  citizen  of  the  United  States  to  be  a  citizen  of  the 
State  where  he  resides  is  a  privilege  of  United  States  citizen- 
ship, and  so,  the  guaranties  in  the  Fifteenth  and  Nine- 
teenth Amendments  that  the  right  of  "citizens  of  the 
United  States  to  vote  shall  not  be  denied  or  abridged 
by  the  United  States  or  by  any  State  on  account  of 
race,  color,  or  previous  condition  of  servitude"  or  on  "ac- 
count of  sex,"  are  immunities  of  United  States  citizenship. 
It  has  also  been  held  that  it  is  a  privilege  attaching  to 
United  States  citizenship  to  make  a  homestead  entry  upon 
unoccupied  public  lands1;  to  inform  federal  officials  of  the 
commission  of  an  offense  against  federal  laws2;  and  to  be 
protected  by  the  United  States  against  lawless  violence 
while  in  the  custody  of  a  United  States  Marshall.3 

§119.  What  Are  Not  Privileges  and  Immunities  of  United 
States  Citizenship?  As  we  have  seen  just  above  the  pro- 
tections against  federal  action  under  the  first  eight  amend- 
ments being  guarantied  to  all  persons  have  been  expressly 
declared  by  the  Supreme  Court  not  to  constitute  privileges 
or  immunities  of  United  States  citizenship.4  By  parity  of 
reasoning  the  prohibitions  in  the  body  of  the  Constitution 
against  suspension  of  the  writ  of  habeas  corpus,  except  in 
cases  of  rebellion  or  invasion,  and  against  the  passing  of  bills 
of  attainder  or  ex  post  facto  laws,  by  the  Federal  Government 
do  not  establish  privileges  or  immunities  of  United  States 
citizenship,  since  these  provisions  protect  all  persons.5  The 
same  would  be  even  more  clearly  true  of  the  Thirteenth 
Amendment  which  prohibits  slavery  or  involuntary  servi- 

1  United  States  v.  Waddell  (1884)  1 12  U.  S.  76. 

2  In  re  Quarles  (1895)  158  U.  S.  532. 

3  Logan  v.  United  States  (1892)  144  U.  S.  263. 

4  Maxwell  v.  Dow  (1900)  176  U.  S.  581.    The  dictum  in  the  Slaughter 
House  Cases  (1872)  16  Wallace  36,  79,  that,  "The  right  to  peaceably 
assemble  and  petition  for  redress  of  grievances,"  falls  within  the  "priv- 
ileges or  immunities"  clause  of  the  Fourteenth  Amendment  is  incorrect 
in  the  light  of  this  later  case. 

s  A  dictum  in  the  Slaughter  House  Cases  (1872)  16  Wallace  36,  79, 
that  the  privilege  of  the  writ  of  habeas  corpus  is  a  privilege  of  United 
States  citizenship  is  not  sustainable  in  view  of  the  reasoning  in  Maxwell 
v.  Dow,  supra. 


336       THE  AMERICAN  CONSTITUTION     §  120 

tude  everywhere  within  the  United  States,  constituting  a 
protection  to  all  persons  against  both  federal  and  state 
action;  of  the  provisions  of  the  Fourteenth  Amendment 
forbidding  States  to  deprive  any  person  of  life,  liberty,  or 
property  without  due  process  of  law,  or  to  deny  any  person 
the  equal  protection  of  the  laws1;  and  of  the  provisions  in 
the  body  of  the  Constitution2  forbidding  the  States  to  ''pass 
any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the 
obligation  of  contracts,"  which  furnish  protection  to  all 
persons  whether  citizens  or  not.  The  mere  fact  that  certain 
privileges  guarantied  to  citizens  of  a  State,  eo  nomine,  are 
contained  in  the  federal  Constitution  would  clearly  seem 
insufficient  reason  for  considering  them  privileges  of  United 
States  citizenship.  Such  are  the  right  of  the  citizen  of  a 
State  to  enjoy  "all  privileges  and  immunities  of  citizens  in 
the  several  States,"3  and  the  right  of  citizens  of  a  State 
under  certain  circumstances  to  resort  to  the  federal  courts. 4 
§120.  Privileges  and  Immunities  of  Citizenship  are  Pro- 
tected against  State  Action.  It  is  entirely  clear  from  the 
language  used  in  Article  Four  of  the  Constitution  and  in  the 
Fourteenth  Amendment  that  the  protection  therein  guaran- 
tied to  privileges  and  immunities  of  state  and  federal  citizen- 
ship is  a  protection  against  state  action,  and  not  against  the 
action  of  private  individuals.  It  is  the  denial  or  abridg- 
ment of  such  rights  by  the  States  which  is  unconstitutional . 
A  private  individual  cannot  deny  or  abridge  a  right,  he  can 
at  most  interfere  with  its  exercise. s 

1  A  dictum  in  the  Slaughter  House  Cases  (1872)  16  Wallace  36,  80, 
that  these  guaranties  are  within  the  "privileges  or  immunities"  clause  of 
the  Fourteenth  Amendment  is  not  sustainable  in  view  of  the  reasoning 
in  Maxwell  v.  Dow,  supra. 

*  Art.  I,  sec.  10.  a  Art.  IV,  sec.  2. 

*  Art.  Ill,  sec.  2.    Both  Chief  Justice  Taney  and  Justice  Curtis  in 
Dred  Scott  v.  Sandford  (1856)  19  Howard  393,  406,  580  and  588,  take  the 
position  that  if  a  person  has  these  rights  he  is  a  United  States  citizen, 
because  such  rights  could  only  have  been  intended  to  attach  to  United 
States  citizenship.    But  as  a  matter  of  fact  they  are  expressly  attached 
to  State  citizenship  as  such. 

s  See  on  this  point  the  discussion  of  the  further  provisions  of  the 
Fourteenth  Amendment  in  sec.  160. 


CHAPTER  XII 

MISCELLANEOUS  POWERS 

§121.  Bankruptcy.  The  Constitution  provides  that 
Congress  shall  have  power  to  establish  "uniform  laws  on 
the  subject  of  bankruptcies  throughout  the  United  States." x 
The  first  national  bankruptcy  law  was  passed  in  1800  and 
repealed  in  1803;  a  second  was  passed  in  1841  and  repealed 
in  1843;  a  third  was  passed  in  1867  and  repealed  in  1878, 
and  the  present  statute  was  passed  in  1898.  Though  the 
English  bankruptcy  legislation  in  force  at  the  time  of  the 
adoption  of  the  Constitution  applied  only  to  merchants  or 
traders,  while  the  term  insolvency  was  applied  to  those 
proceedings  by  which  others  were  empowered  to  surrender 
their  property  for  the  benefit  of  creditors  and  so  be  dis- 
charged, this  distinction  was  not  acted  upon  in  the  colonies, 
and  was  not  adopted  by  the  Supreme  Court.  According  to 
its  decisions  Congress  may,  under  the  bankruptcy  clause,  pass 
what  would  have  been  classed  under  the  English  law  as 
insolvency  laws  as  well  as  bankruptcy  laws. 2 

It  has  been  decided  that  the  uniformity  required  by  the 
bankruptcy  clause  is  a  geographical  uniformity,  but  that 
this  is  not  destroyed  by  allowing  to  a  bankrupt  the  exemp- 
tions to  which  he  is  entitled  at  the  time  of  filing  his  petition 
by  the  laws  of  the  State  in  which  he  has  been  domiciled  for 
the  six  months  or  the  greater  portion  thereof  immediately 
preceding  the  filing  of  the  petition.3  The  trustee  still 

1  Art.  I,  sec.  8,  par.  4. 

3  Story  on  the  Constitution  (sth  ed.),  sees,  mi  to  1113;  Sturges  v. 
Crowninshield  (1819)  4  Wheaton  122,  194;  Hanover  Nat.  Bk.  v.  Moyses 
(1902)  i86U.  S.  181,  184. 

a  Sec.  6  of  the  Bankruptcy  Act  of  1 898.  There  was  a  similar  provision 
in  the  earlier  act. 

22  337 


338       THE  AMERICAN  CONSTITUTION     §  122 

1 '  takes  in  each  State  whatever  would  have  been  available 
to  the  creditor  if  the  bankruptcy  law  had  not  been  passed. 
The  general  operation  of  the  law  is  uniform  although  it 
may  result  in  certain  particulars  differently  in  different 
States."1 

The  fact  that  power  to  enact  bankruptcy  legislation  is 
vested  in  Congress  was  early  held  not  to  deprive  the  States 
of  the  power  to  pass  insolvency  laws  in  the  absence  of 
federal  legislation. 2  Nor  does  the  enactment  of  a  national 
bankruptcy  law  annul  existing  state  laws.  Such  laws  are 
simply  suspended  and  come  again  immediately  into  force 
upon  the  repeal  of  the  federal  enactment.3 

§122.  Patents,  Copyrights,  and  Trade-Marks.  The  Con- 
stitution gives  Congress  the  power  "to  promote  the  progress 
of  science  and  useful  arts,  by  securing  for  limited  times  to 
authors  and  inventors  the  exclusive  right  to  their  respective 
writings  and  discoveries."4  A  patent  or  a  copyright  does 
not  give  to  the  recipient  any  right  to  sell  the  patented  or 
copyrighted  product  in  a  State  which  he  would  not  have 
had  otherwise,  but  only  excludes  others  from  producing  it. 
It,  therefore,  follows  that  the  States  may  control  the  use  of 
the  product  under  their  police  power5;  and  it  has  also  been 
held  that  the  States  may  impose  license  fees  upon  the  sale 
of  such  products. 6  Congress  has  no  general  jurisdiction  or 
authority  with  regard  to  trade-marks,  and  so  can  only 

1  Hanover  Nat.  Bk.  v.  Moyses  (1902)  186  U.  S.  181,  190.    See  also 
In  re  Deckert  (1874)  Fed.  Cas.  No.  3,  728.    In  the  Hanover  Nat.  Bk. 
case  it  was  also  held  that  there  was  not  an  unconstitutional  delegation  by 
Congress  of  legislative  power  to  the  States. 

2  Sturgis  v.  Crowninshield  (1819)  4  Wheaton  122;  Odgen  v.  Saunders 
(1827)  12  Wheaton  213. 

3  Sturgis  v.  Crowninshield  (1819)  4  Wheaton  122;  Butler  v.  Gaveley 
(1892)  146  U.  S.  303.     For  a  consideration  of  what  laws  are  suspended 
see  Williston,  "The  Effect  of  a  National  Bankruptcy  Law  upon  State 
Laws,"  22  Harv.  L.  Rev.,  547. 

4  Art.  I,  sec.  8,  par.  8. 

s  Pattersons.  Kentucky  (1878)  97  U.  S.  501. 

6  Webber  v.  Virginia  (1880)  103  U.  S.  344;  Allen  v.  Riley  (1906)  203 
U.  S.  347- 


§  123  MISCELLANEOUS  POWERS  339 

legislate  with  regard  to  them  under  its  power  over  interstate 
commerce. J  A  protection  of  mere  labels  is  not  within  the 
purpose  of  the  constitutional  provision  as  to  copyrights. 

"To  entitle  it  to  a  copyright  the  article  must  have  by 
itself  some  value  as  a  composition,  at  least  to  the  extent 
of  serving  some  purpose  other  than  as  a  mere  advertise- 
ment or  designation  of  the  subject  to  which  it  is 
attached."2 

§123.  Postal  Service.  The  constitutional  provision  upon 
which  the  federal  postal  service  is  based  is  very  brief, 
declaring  merely  that  Congress  shall  have  power  "to  estab- 
lish post-offices  and  post  roads."3  Under  the  Articles  of 
Confederation  Congress  was  given  exclusive  power  of 

"establishing  and  regulating  post-offices  from  one  State 
to  another  throughout  the  United  States,  and  exacting 
such  postage  on  papers  passing  through  the  same  as  may 
be  requisite  to  defray  the  expenses  of  the  said  office."4 

Under  this  provision  the  interior  post-offices  in  each  State 
seem  to  have  been  left  to  the  regulation  of  the  State  itself.5 
The  first  proposal  in  the  Constitutional  Convention  was  to 
give  Congress  the  power  of  "establishing  post-offices,"  but 
the  words  "and  post  roads"  were  added  apparently  without 
debate  by  a  vote  of  six  States  to  five.6  It  was  contended 
on  the  one  hand  that  this  gave  Congress  only  the  power  to 
designate  the  roads  over  which  the  posts  should  travel,  and 
not  the  power  to  provide  for  such  roads.7  This  view  has, 

1  Trade-Mark  Cases  (1879)  100  U.  S.  82;  Ryder  v.  Holt  (1888)  128 
U.  S.  525.  Compare  United  Drug  Co.  v.  Rectamus  Co.  (1918)  248  U.  S. 
90,  97  and  98. 

aHiggins  v.  Keuffel  (1891)  140  U.  S.  428,  431.  Compare  Courier 
Lith.  Co.  v.  Donaldson  Lith.  Co.  (1900)  104  Fed.  993  and  Louis  De 
Jouge  &  Co.  v.  Breuker  &  Kessler  Co.  (1910)  182  Fed.  150. 

3  Art.  I,  sec.  8.  par.  7.  <  Art.  IX. 

s  Story  on  the  Constitution  (sth  ed.),  sec.  1126. 

6Farrand,  Records  of  the  Federal  Convention,  vol.  ii,  pp.  135,  144,  159, 
168,  182,303. 

i  Story  on  the  Constitution  (5th  ed.),  sees.  1128  to  1150,  contains  an 
extended  consideration  of  these  questions. 


340       THE  AMERICAN  CONSTITUTION     §  123 

however,  not  been  accepted  by  the  Supreme  Court,  which  has 
rested  the  power  of  the  national  government  to  construct  or 
to  provide  for  the  construction  of  national  highways,  includ- 
ing railroads  and  canals  from  State  to  State,  as  well 
upon  the  powers  to  provide  for  postal  accommodations  as 
upon  the  powers  to  provide  accommodations  to  meet  mili- 
tary exigencies,  and  to  regulate  interstate  commerce.1  The 
national  government  may  also  provide  for 

"the  Carriage  of  the  mail,  and  all  measures  necessary  to 
secure  its  safe  and  speedy  transit,  and  the  prompt  deliv- 
ery of  its  contents.  .  .  .  The  power  possessed  by 
Congress  embraces  the  regulation  of  the  entire  postal 
system  of  the  country."2 

So  the  national  government  may  by  injunction  or  by  the 
use  of  military  forces  prevent  interference  with  the  move- 
ment of  the  mails  as  well  as  of  interstate  commerce. 3 

"To  give  efficiency  to  its  regulations  and  prevent  rival 
postal  systems,  it  may  perhaps  prohibit  the  carriage  by 
others  for  hire,  over  postal  routes,  of  articles  which 
legitimately  constitute  mail  matter,  in  the  sense  in  which 
those  terms  were  used  when  the  Constitution  was  adopted 
consisting  of  letters,  and  of  newspapers  and  pamphlets, 
when  not  sent  as  merchandise;  but  further  than  this  its 
power  of  prohibition  cannot  extend."4 

Congress  may  determine  what  classes  of  things  will  be 
transmitted  by  mail  as  long  as  there  is  no  discrimination 
between  individuals  with  regard  to  things  in  any  given  class. 
It  may  exercise  this  power  for  the  purpose  of  protecting  the 
morals  of  the  community,'  or  to  protect  the  public  against 

1  California  v.  Cent.  Pac.  R.  R.  Co.  (1888)  127  U.  S.  I ;  Wilson  v.  Shaw 
(1907)  204  U.  S.  24,  33.  And  the  power  of  eminent  domain  may  be  ex- 
ercised for  this  purpose.  Latinette  v.  City  of  St.  Louis  (1912)  201  Fed.  676. 

a  Ex  parte  Jackson  (1877)  96  U.  S.  727,  732. 

3  In  re  Debs  (1895)  158  U.  S.  564. 

<  Ex  parte  Jackson  (1877)  96  U.  S.  727,  735. 

s  In  re  Rapier  (1892)  143  U.  S.  no. 


§  124  MISCELLANEOUS  POWERS  341 

fraud.  x  It  may  not,  it  has  been  said,  make  regulations  with 
regard  to  the  mail  service  which  constitute  a  curtailment  of 
the  constitutional  right  of  free  speech, 2  but  it  may  prevent 
the  use  of  the  mails  for  the  transmission  of  seditious  matter. 3 
The  constitutional  provision  against  searches  and  seizures, 
however,  prevents  the  opening  of  sealed  mail  matter  without 
a  search  warrant  for  the  purpose  of  determining  whether  its 
contents  are  improper. 4 

§124.  Weights  and  Measures.  The  desirability  of  uni- 
formity in  standards  of  weights  and  in  measures  was  suffi- 
ciently apparent  at  the  outset  of  our  national  history  to  result 
in  the  introduction  into  the  Articles  of  Confederation  of  a 
clause  giving  Congress  power  to  "  fix  the  standard  of  weights 
and  measures  throughout  the  United  States."5  A  like 
power  was  incorporated-  in  the  Constitution6  by  a  unani- 
mous vote  without  debate.7  Congress  has  never  exercised 
this  power  except  to  make  the  brass  troy  pound  weight  the 
standard  troy  pound  weight  of  the  United  States  mint.8 
Until  it  does  so  it  seems  that  each  State  may  for  itself  regu- 
late weights  and  measures. 9  The  Secretary  of  the  Treasury 
has,  however,  had  standards  of  weights  and  measures  made 
for  the  use  of  the  custom-houses,  and  under  the  direction  of 
Congress  has  provided  each  State  with  duplicates  of  these 
standards.10 

1  Public  Clearing  House  v.  Coyne  (1904)  194  U.  S.  497. 

a  Ex  parte  Jackson  (1877)  96  U.  S.  727,  733.  Generally  on  the  subject 
of  freedom  of  speech  and  of  the  press  see  the  next  chapter. 

*  United  States  v.  Burleson  (1921)  41  Sup.  Ct.  Rep.  352. 

«  Ex  Parte  Jackson  (1877)  96  U.  S.  727. 

«  Art.  IX. 

6  Art.  I,  sec.  8,  par.  5. 

^  Farrand,  The  Records  of  the  Federal  Convention,  vol.  ii,  p.  308.  See 
also  the  Federalist,  No.  42. 

8  U.  S.  Rev.  Stat.,  sees.  3548,  3549. 

'Higgins  v.  Cal.  Pet.  Co.  (1895)  109  Calif.  304;  Harris  v.  Rutledge 
(1865)  19  la.  388;  Caldwell  v.  Dawson  (1862)  4  Mete.  (Ky.)  121 ;  Weaver 
v.  Fegely  (1857)  29  Pa.  St.  27.  Contra,  The  Miantinomi  (1855)  Fed. 
Cas.  9,  521. 

10  Joint  Res.  June  14,  1836,  5  Stat.  133;  Act  of  March  3,  1881,  21 
Stat.  521 ;  Act  of  July  1 1,  1890,  26  Stat.  242. 


CHAPTER  XIII 

FREEDOM  OF  RELIGION,  SPEECH,  PRESS  AND  ASSEMBLY 

§125.  Religious  Freedom.  Even  without  any  consti- 
tutional prohibition  the  advocate  of  a  federal  statute 
providing  for  an  established  religion,  or  of  one  prohibiting 
the  free  exercise  of  religion,  would  have  been  unable  to  find 
any  constitutional  warrant  for  such  an  act.  Moreover,  the 
diversity  of  religious  creeds  and  practices  in  the  various 
States  would  have  assured  freedom  from  such  legislation  by 
Congress.  Still  it  is  not  strange  that  Jefferson,  who  had 
fought  for  and  secured  the  Virginia  statute  for  "establish- 
ing religious  freedom" — one  of  the  three  things  for  which 
he  wished  to  be  remembered — should  ask  for  an  express 
guaranty  on  this  point.  Although  his  policy  was  destined 
to  gain  acceptance  in  every  State,  it  had  made  but  little 
progress  when  the  first  Congress  met.  The  First  Amend- 
ment to  the  Constitution  declares  that,  "Congress  shall 
make  no  law  respecting  an  establishment  of  religion,  or 
prohibiting  the  free  exercise  thereof."1 

No  act  of  Congress  has  ever  been  assailed  as  an  attempt 
to  -set  up  an  establishment  of  religion,  and  the  complete 
separation  of  church  and  state  in  this  country  is  an  un- 
questioned canon  of  government. 

The  meaning  of  the  phrase  "prohibiting  the  free  exercise 
of  religion"  received  careful  consideration  for  the  first  time 
by  the  Supreme  Court  in  the  case  of  a  person  who  had 
violated  the  federal  law  prohibiting  poligamy  in  the  terri- 
tories.2 The  defense  set  up  was  that  poligamy  was  en- 

1  The  Constitution  also  provides  that,  "no  religious  test  shall  ever  be 
required  as  a  qualification  to  any  office  or  public  trust  under  the  United 
States."    Art.  VI,  par.  3. 

2  Reynolds  v.  United  States  (1878)  98  U.  S.  145. 

342 


§  125  FREEDOM  OF  SPEECH  343 

joined  by  the  religious  creed  of  defendant's  church,  and 
that  the  statute  was  unconstitutional  in  prohibiting  defend- 
ant's free  exercise  of  his  religion.  Chief  Justice  Waite, 
writing  for  a  unanimous  court,  recounted  the  history  of  the 
amendment,  quoted  from  the  preamble  of  the  Virginia 
statute  "for  establishing  religious  freedom,"  as  well  as  from 
the  writings  of  Jefferson  and  Madison,  and  concluded  that 
' '  Congress  was  deprived  of  all  legislative  power  over  mere 
opinion,  but  was  left  free  to  reach  actions  which  were  in 
violation  of  social  duties  or  subversive  of  good  order."1 
Shortly  after  the  statute  on  religious  freedom  was  enacted 
in  Virginia,  that  State  reenacted  an  English  law  making  the 
offense  of  poligamy  punishable  with  death,  and  the  practice 
of  poligamy  had  remained  a  crime  against  society.  The 
court  concluded  that  the  statute  under  consideration  was 
within  the  legislative  power  of  Congress,  and  that  the  de- 
fendant could  not  excuse  practices  prohibited  by  the  statute 
because  of  his  religious  beliefs.  In  a  later  case,  upholding 
territorial  legislation  excluding  from  the  right  to  vote  all 
those  who  practiced  or  taught  poligamy,  the  Supreme 
Court  said : 

"It  is  assumed  by  counsel  of  the  petitioner,  that 
because  no  mode  of  worship  can  be  established  or  religious 
tenets  enforced  in  this  country,  therefore  any  form  of 
worship  may  be  followed  and  any  tenets,  however 
destructive  of  society,  may  be  held  and  advocated,  if 
asserted  to  be  part  of  the  religious  doctrines  of  those 
advocating  and  practicing  them.  But  nothing  is  further 
from  the  truth.  Whilst  legislation  for  the  establishment 
of  a  religion  is  forbidden,  and  its  free  exercise  permitted, 
it  does  not  follow  that  everything  which  may  be  so  called 
can  be  tolerated.  Crime  is  not  the  less  odious  because 
sanctioned  by  what  any  particular  sect  may  designate  as 
religion."2 

1  Reynolds  v.  United  States  (1878)  98  U.  S.  145,  164. 

2  Davis  v.  Season  (1890)  133  U.  S.  333,  345.    Religious  freedom  does 
not  secure  to  one  the  right  to  use  the  mails  in  a  scheme  to  get  money 
from  others  by  professing  the  attainment  of  a  supernatural  state  of  self- 


344       THE  AMERICAN  CONSTITUTION     §  126 

Many  state  constitutions  explicitly  provide  that  liberty 
of  conscience  shall  not  be  so  construed  as  to  excuse  acts  of 
licentiousness,  or  justify  practices  inconsistent  with  the 
peace  or  safety  of  the  State.1  Under  such  provisions  a 
parent's  religious  liberty  is  not  unwarrantably  limited  by  a 
statute  which  requires  him  to  provide  medical  aid  for  his 
children,  though  his  religious  belief  forbids  his  doing  so.2 
Nor  is  a  statute  or  a  city  ordinance  unconstitutional  which 
prohibits  the  beating  of  drums  or  the  use  of  musical  instru- 
ments in  the  public  streets  of  towns,  though  these  acts  are 
done  in  the  performance  of  religious  services  and  in  accord- 
ance with  the  offender's  religious  belief.3  The  fact  that 
statutes  are  colored  and  molded  by  the  Christian  religion 
does  not  render  their  prohibitions  violative  of  religious 
freedom  if  primarily  they  are  civil  regulations  with  a  view 
to  promoting  the  moral  and  physical  welfare  of  the  com- 
munity, as  in  the  case  of  statutes  prohibiting  Sunday  labor.4 

§126.  Freedom  of  Speech  and  of  the  Press  under  the  Com- 
mon Law.  The  early  English  law  had  no  place  for  free- 
dom of  speech  and  of  the  press,  in  the  sense  of  a  right  to 
criticize  the  sovereign,  the  government  or  those  holding 
public  office,  no  matter  how  true  the  strictures  might  be, 
and  no  matter  how  proper  might  be  the  motives  of  the  per- 

immortality  by  righteous  conduct,  enabling  him  to  conquer  disease, 
death,  poverty,  and  misery,  and  to  transmit  this  power  to  others.  New 
t;.  United  States  (1917)  245  Fed.  710. 

1  See  the  reporter's  note  appended  to  the  Supreme  Court  case  last 
cited,  at  page  348. 

J  People  t>.  Pearson  (1903)  176  N.  Y.  201. 

3  Commonwealth  v.  Plaisted  (1889)  148  Mass.  375;  State  v.  White 
(1886)  64  N.  H.  48. 

«Rosenbaum  v.  State  (1917)  131  Ark.  251.  As  to  whether  it  is  un- 
constitutional to  require  children  in  public  schools  to  listen  to  the  reading 
of  the  Bible,  and  to  join  in  singing  hymns  and  in  repeating  the  Lord's 
Prayer,  has  been  differently  decided.  People  v.  Board  of  Education 
(1910)  245  111.  334  (holding  such  legislation  invalid);  Church  v.  Bullock 
(1908)  104  Tex.  i  (holding  it  valid).  See  also  Commonwealth  v.  Herr 
(1910)  229  Pa.  132,  holding  it  constitutional  to  forbid  teachers  in  public 
schools  to  wear  any  dress  or  emblem  indicating  that  they  are  members  of 
any  order,  sect,  or  denomination. 


§126  FREEDOM  OF  SPEECH  345 

sons  publishing  them.  This  was  true  of  the  England  of  the 
Tudor s  and  of  the  Stuarts,  and  legal  recognition  of  real  free- 
dom of  speech  and  press  was  not  attained  until  the  close  of 
the  eighteenth  century. 

As  soon  as  printing  became  at  all  general  in  the  middle  of 
the  sixteenth  century  the  Crown  assumed  the  prerogative 
of  regulating  its  exercise.  It  determined  the  number  of 
printers  and  presses,  where  printing  might  be  carried  on, 
and  required  all  books  to  be  first  licensed  by  its  represen- 
tative. All  this  was  done  through  the  instrumentality  of 
the  Star  Chamber,  and  severe  penalties  were  visited  upon 
those  who  disobeyed.  When  the  Commonwealth  replaced 
the  Kingdom,  Parliament  continued  the  policy  of  licensing, 
and  of  restriction,  against  which,  Milton 'wrote  his  Are- 
opagitica  in  1644;  and  upon  the  restoration  the  same  policy 
was  pursued.  It  was  not  until  1694  that  the  last  licensing 
act  expired,  and  Parliament  refused  to  pass  another.  r 

At  first  the  printing  of  proceedings  in  Parliament  was  not 
interfered  with,  and  ,the  Long  Parliament  authorized  the 
publication  of  its  proceedings.  It  forbade,  however,  the 
printing  of  speeches,  except  with  the  permission  of  the 
House,  and  one  of  its  members  was  expelled  and  imprisoned 
in  the  tower  for  printing  a  collection  of  his  speeches.  After 
the  Restoration  the  publication  of  debates  continued  to  be 
forbidden,  though  a  summary  of ' '  votes  and  proceedings  "  in 
the  House  of  Commons  was  published  under  the  direction  of 
the  Speaker.  Reports  of  debates  were,  however,  published, 
but  in  very  garbled  and  partisan  form.  As  the  attempts  to 
restrain  these  publications  became  more  strenuous  after 
the  Revolution,  it  became  the  practice  to  print  the  sub- 
stance of  the  parliamentary  debates  as  if  they  had  taken 
place  in  some  imaginary  realm,  or  in  some  political  club. 
Notwithstanding  these  subterfuges  many  printers  were 
brought  to  the  bar  of  the  House  and  punished.  Finally  a 
messenger  of  the  House,  sent  to  arrest  an  offender,  was  by 
the  latter  charged  with  assault  and  false  imprisonment 

1  May,  Constitutional  History  of  England,  vol.  ii,  pp.  2  to  4;  Stephen, 
History  of  the  Criminal  Law  of  England,  vol.  ii,  pp.  309,  310. 


346       THE  AMERICAN  CONSTITUTION     §  126 

before  the  Mayor  of  London  and  two  aldermen.  These 
magistrates,  declaring  that  no  warrant  of  arrest  could  be 
executed  within  the  city  unless  issued  by  a  magistrate, 
released  the  original  offender,  and  committed  the  messenger. 
This  brought  the  House  and  the  city  into  direct  conflict. 
The  House  committed  the  Mayor  and  one  of  the  aldermen 
to  the  Tower  for  a  violation  of  the  privilege  of  the  House, 
where  they  stayed  six  weeks,  until  the  end  of  the  parliamen- 
tary session.  But  popular  feeling  ran  so  high  in  their  favor 
that  really  the  victory  was  with  them  and  not  with  Parlia- 
ment. Thereafter,  though  the  publication  of  parliamentary 
debates  was  and  still  is  declared  to  be  a  breach  of  privilege, 
it  has  been  prosecuted  with  impunity,  and  there  has  been 
no  punishment  except  for  willful  misrepresentation.1 

We  must  now  look  for  a  moment  at  what  the  common  law 
made  illegal  to  say  or  write.  Defamatory  words  or  writings 
werp  the  basis  of  action  for  damages,  but  the  truth  of  the 
words,  spoken  or  written,  was  always  a  defense  in  such  an 
action.2  In  such  action  it  was  not  and  is  not  necessary 
to  prove  actual  malice,  the  malice  necessary  being 
only  the  absence  of  legal  excuse,  but  actual  malice 
may  aggravate  the  damages,  or  deprive  the  defendant  of 
certain  defenses  of  privilege.3  Speaking  words  defam- 
atory of  private  persons  was  not  criminal  at  common  law, 
but  writing  and  publishing  such  words  were.  The  gist  of 
the  crime  of  libel  was  doing  an  act  tending  to  a  breach  of  the 
peace.  The  truth  of  a  defamatory  writing  was,  therefore, 
no  defense — such  a  disclosure  was  quite  as  likely  to  cause 
resentment  as  were  false  statements.4  Malice  meant 
nothing  more  here  than  in  the  civil  action,  and  proof  of 
actual  malice  was  only  important  in  defeating  certain 
defenses  of  privilege. s 

1  May,  Constitutional  History  of  England,  vol.  i,  pp.  330  to  345. 

3  Odgers  on  Libel  and  Slander  (5th  ed.)  181,  473. 

3  Ibid.,  341  et  seq. 

*  The  Case  de  Libellis  Famosis  (1605)  5  Coke's  Rep.  125;  Stephen, 
History  of  the  Criminal  Law  of  England,  vol.  ii,  pp.  305,  343,  348;  Odgers 
on  Libel  and  Slander  (5th  ed.)  473. 

s  Odgers  on  Libel  and  Slander  (sth  ed.)  473.   A  person  is  free  from  any 


§  126  FREEDOM  OF  SPEECH  347 

In  Coke's  report  of  the  Case  de  Libellis  Famosis1  we  are 
told  that  if  a  libel  is  "against  a  magistrate,  or  other  public 
person,  it  is  a  greater  offense;  for  it  concerns  not  only  the 
breach  of  the  peace,  but  also  the  scandal  of  government." 
If  in  a  state  the  government  takes  the  attitude  that  it  is  set 
above  the  people  and  is  not  the  agent  of  the  people,  and  that 
the  people  can  not  determine  what  is  best  for  them,  but  that 
it  is  for  the  government  to  give  them  what  it  believes  is  for 
their  good,  in  that  state  the  government  will  naturally 
strongly  reprobate  any  criticism  by  the  people  of  the  con- 
stitution, the  laws  or  the  instruments  of  government,  or  any 
efforts  by  the  people  to  bring  about  changes  by  public  dis- 
cussion. This  was,  of  course,  the  attitude  taken  by  the 
early  English  rulers,  and  strongly  adhered  to  by  the  Tudor 
and  Stuart  sovereigns.  It  was  also  the  attitude  which  until 
comparatively  recently  was  taken  by  the  British  Parlia- 
ment. 

"Everywhere  authority  has  resented  discussion,  as 
hostile  to  its  own  sovereign  rights.  Hence,  in  states 
otherwise  free,  liberty  of  opinion  has  been  the  last  political 
privilege  which  the  people  have  acquired."2 

From  this  policy  of  suppression  of  discussion  and  criticism 
resulted  the  indefinite  enlargement  of  the  crime  of  treason, 
against  which  are  aimed  the  constitutional  provisions  al- 
ready discussed.  From  this  policy  also  resulted  the  rigor- 
ous punishment  of  the  crime  which  came  to  be  known  as 
seditious  libel.  And  it  is  to  be  noted  that  it  was  not  only 
the  written  word  of  agitation  and  criticism  which  was  pun- 
ished, but  the  spoken  word  as  well. 3 

liability  for  words  spoken  or  written  in  legislative  debate,  in  judicial 
proceedings  or  in  official  communications  on  matters  of  state.  One  is 
also  not  liable  if  he  speaks  or  writes  honestly  and  without  malice  of  a 
matter  with  regard  to  which  he  has  an  interest  or  duty,  and  to  one  who 
also  has  an  interest  or  duty  with  regard  to  the  matter.  Ibid.,  chaps. 
9  to  ii. 

1  (1605)  5  Coke's  Rep.  125. 

2  May,  Constitutional  History  of  England,  vol.  ii,  p.  2. 

3  "  In  the  early  part  of  the  seventeenth  century  prosecutions  for  sedi- 


348       THE  AMERICAN  CONSTITUTION     §  126 

These  crimes  of  seditious  libel  and  seditious  speech  were 
developed  in  all  their  rigor  by  the  Star  Chamber,  which 
dispensed  justice  without  a  jury.1  In  1641  the  Star 
Chamber  was  abolished,  and  the  Court  of  King's  Bench 
administered  the  law  of  libel  and  of  seditious  speech. 
In  these  courts  the  trial  was  by  jury,  but  the  precedents 
established  by  the  Star  Chamber  were  followed,  and 
in  fact  the  jury  was  given  very  little  scope.  The  whole 
crime  consisted  of  the  saying  or  writing  and  publishing 
of  words  critical  of  the  sovereign,  constitution,  laws  or 
men  in  public  office,  because  this  tended  to  bring  the 
government  into  disrepute  and  to  weaken  its  authority. 
The  truth  of  the  words  was  no  defense.  It  was  not  a  de- 
fense to  show  that  there  was  no  intention  to  stir  up  disorder, 
or  to  induce  breach  of  law,  or  that  the  words  in  question  had 
no  such  tendency.  Nor  was  it  a  defense  to  show  that  the 
words  were  spoken  or  written  for  the  purpose  of  bringing 
about  orderly  reforms  in  government,  or  to  point  out  to  the 
government  the  danger  of  popular  odium  which  it  was  incur- 
ring. This  being  so,  juries  were  repeatedly  instructed  that  it 
was  not  their  function  to  look  to  the  truth  of  the  statements, 
or  to  the  purpose  with  which  they  were  made — their  only 
function  was  to  determine  whether  the  statements  alleged 
had  been  made,  whether,  in  case  of  a  writing,  the  defendant 
when  he  published  it  knew  its  contents,  and  whether  the 
innuendoes  set  forth  in  the  indictment  were  correct.2  In 
1789,  in  answer  to  questions  put  by  the  House  of  Lords,  the 
Judges  of  England  gave  unanimous  answers,  which  have 
been  summarized  as  follows3: 

"i.     The  criminality  or  innocence  of  any  act  done 
(which   includes   any  paper  written)    is   the   result   of 

tious  words  were  as  common  as  prosecutions  for  libels,  and  sometimes 
even  more  important."  Stephen,  History  of  the  Criminal  Law  of  Eng- 
land, vol.  ii,  p.  307. 

1  Ibid,,  304  to  309. 

3  Stephen,  History  of  the  Criminal  Law  of  England,  vol.  ii,  pp.  298  to 
358;  May,  Constitutional  History  of  England,  vol.  ii,  pp.  I  to  18. 

J  Stephen,  History  of  the  Criminal  Law  of  England,  vol.  ii,  pp.  343,  344. 


§  126  FREEDOM  OF  SPEECH  349 

the  judgment  which  the  law  pronounces  upon  that  act, 
and  must  therefore  be  in  all  cases,  and  under  all  circum- 
stances, matter  of  law  and  not  matter  of  fact,  and  this  as 
well  where  evidence  is  given  for  the  defendant  as  where  it 
is  not  given.  2.  The  truth  or  falsehood  of  a  written 
or  printed  paper  [charged  to  be  a  libel]  is  not  material,  or 
to  be  left  to  the  jury  upon  the  trial  of  an  indictment  or 
information  for  libel.  The  word  'false'  is  an  indictment 
or  information  is  at  most  a  word  of  form.  'In  point  of 
substance  the  alteration  in  the  description  of  the  offense 
would  hardly  be  felt  if  the  epithet  were  verus  instead  of 
falsus.'  3.  If  the  judge,  on  a  trial  for  libel,  is  quite  clear 
that  the  matter  alleged  to  be  libelous  is  not  libelous,  he 
may  direct  an  acquittal  although  the  publication  and  the 
innuendoes  are  proved,  but  he  ought  to  be  very  sure 
indeed;  and,  as  a  general  rule,  the  safer  course  is  to  leave 
the  matter  to  the  court  upon  the  record.  4.  The  crim- 
inal intention  charged  upon  the  defendant  in  legal  pro- 
ceedings upon  libel  is  generally  matter  of  form,  requiring 
no  proof  on  the  part  of  the  prosecutor  and  admitting  of  no 
proof  on  the  part  of  the  defendant  to  rebut  it.  The  crime 
consists  of  publishing  a  libel.  A  criminal  intention 
in  the  writer  is  no  part  of  the  definition  of  libel  at  the 
common  law.  'He  who  scattereth  firebrands,  arrows,  and 
death,'  which,  if  not  a  definition,  is  a  very  intelligible 
description  of  libel,  is  ed  ratione  criminal ;  it  is  not  incum- 
bent upon  the  prosecutor  to  prove  his  intent,  and  on  his 
part  he  shall  not  be  heard  to  say,  'Am  I  not  in  sport? '  " 

It  is  probably  the  law  as  thus  administered  by  the  courts 
that  Blackstone  had  in  mind  when  he  wrote  the  following 
passage1: 

"The  liberty  of  the  press  is  indeed  essential  to  the 
nature  of  a  free  state ;  but  this  consists  in  laying  no  previous 
restraints  upon  publications,  and  not  in  freedom  from 
censure  for  criminal  matter  when  published.  Every 
freeman  has  an  undoubted  right  to  lay  what  sentiments 
1  Bk.  IV,  sec.  1 68.  This  book  was  published  in  1769. 


350       THE  AMERICAN  CONSTITUTION     §  126 

he  pleases  before  the  public:  to  forbid  this  is  to  destroy 
the  freedom  of  the  press,  but  if  he  publishes  what  is 
improper,  mischievous,  or  illegal,  he  must  take  the  con- 
sequences of  his  own  temerity.  To  subject  the  press  to 
the  restrictive  power  of  a  licenser,  as  was  formerly  done, 
both  before  and  since  the  Revolution,  is  to  subject  all 
freedom  of  sentiment  to  the  prejudices  of  one  man,  and 
make  him  the  arbitrary  and  infallible  judge  of  all  con- 
traverted  points  in  learning,  religion,  and  government. 
But  to  punish  (as  the  law  does  at  present)  any  dangerous 
or  offensive  writing  which,  when  published,  shall  on  a  fair 
and  impartial  trial  be  adjudged  of  a  pernicious  tendency, 
is  necessary  for  the  preservation  of  peace  and  good  order, 
of  government  and  religion, — the  only  solid  foundations 
of  civil  liberty.  Thus  the  will  of  individuals  is  still  left 
free;  the  abuse  only  of  that  free  will  is  the  object  of  legal 
punishment.  Neither  is  any  restraint  hereby  laid  upon 
freedom  of  thought  or  of  inquiry :  liberty  of  private  senti- 
ment is  still  left ;  the  dissemination,  or  making  public,  of 
bad  sentiments,  destructive  to  the  ends  of  society,  is  the 
crime  which  society  corrects.  A  man  (say  a  fine  writer 
on  his  subject)  may  be  allowed  to  keep  poisons  in  his 
closet,  but  not  publicly  to  vend  them  as  cordials.  And  to 
this  we  may  add,  that  the  only  plausible  argument  here- 
tofore used  for  restraining  the  just  freedom  of  the  press, 
'that  it  was  necessary,  to  prevent  the  daily  abuse  of  it,' 
will  entirely  lose  its  force  when  it  is  shown  (by  a  season- 
able exertion  of  the  laws)  that  the  press  cannot  be  abused 
to  any  bad  purpose  without  incurring  a  suitable  punish- 
ment ;  whereas  it  never  can  be  used  to  any  good  one,  when 
under  the  control  of  an  inspector.  So  true  will  it  be  found 
that  to  censure  the  licentious,  is  to  maintain  the  liberty 
of  the  press." 

Notwithstanding  this  eulogy  it  is  quite  evident  that  severe 
penalties  consistently  visited  upon  those  who  criticize  the 
government  may  constitute  substantially  as  effective  a 
censorship  as  a  system  of  licensing. 


§  126  FREEDOM  OF  SPEECH  351 

It  takes  but  little  study  of  the  times,  however,  to  discover 
that  before  the  end  of  the  eighteenth  century  there  existed, 
side  by  side  with  this  legal  doctrine  of  seditious  libel  and 
seditious  speech,  with  its  drastic  limitations  upon  free 
expression,  a  very  different  popular  notion  of  the  rights  of 
free  speech  and  of  a  free  press.  This  is  shown  in  the  first 
place  by  the  great  increase  of  popular  discussion  and 
criticism  of  the  government,  the  laws  and  of  public  men 
during  the  eighteenth  century,  notwithstanding  the  penal- 
ties repeatedly  imposed  by  the  courts.  This  is  the  surest 
indication  of  a  popular  sentiment  in  favor  of  such  discussion 
and  criticism.  We  also  find  juries  at  times  rebelling  and 
taking  matters  very  much  more  into  their  own  hands  than 
the  judicial  theory  of  their  function  would  justify.  For 
instance  in  Rex  v.  Owen1  the  jury  was  urged  by  counsel 
to  acquit  on  the  ground  that  defendant's  publication  was 
not  proved  to  be  malicious  or  false,  and  this  the  jury  did, 
although  the  judge  directed  a  conviction  in  case  the  jury 
should  find  the  publication  proved.  Again  in  Rex  v.  Miller, 2 
one  of  the  prosecutions  for  the  publication  of  Junius's 
famous  letter  to  the  King,  the  publication  by  the  defendant 
was  not  controverted,  and  that  the  meaning  put  upon  the 
writing  by  the  prosecution  was  substantially  correct  was  not 
denied.  Lord  Mansfield  clearly  instructed  the  jury  that 
their  only  duty  was  to  determine  whether  defendant  pub- 
lished the  writing,  and  whether  it  meant  what  the  prosecu- 
tion alleged,  and  that  it  was  quite  out  of  their  province  to 
pass  upon  its  criminality.  The  writing  was  most  obviously 
and  severely  critical  of  the  government  and  of  those  con- 
ducting it,  but  it  was  justified  by  defendant's  counsel  as  a 
manly  and  wholesome  piece  of  advice  to  the  King  for  the 
betterment  of  the  government.  The  jury  brought  in  a 
verdict  of  not  guilty.  They  went  to  Lord  Mansfield's 
house  to  report  it  to  him.  The  report  of  the  trial  ends  thus : 

"His  lordship  went  away  without  saying  a  word.     But 
there  being  a  vast  concourse  of  people  in  the  square,  who 

1  (1752)  1 8  State  Trials  1203.  (1770)  20  State  Trials  870. 


352       THE  AMERICAN  CONSTITUTION     §  126 

had  followed  the  jury  from  Guildhall,  they,  as  soon  as 
the  verdict  was  known,  testified  their  joy,  by  the  loudest 
huzzas." 

In  Wood/all's  case,1  also  growing  out  of  the  publication  of 
the  Junius  letter,  the  jury  brought  in  a  verdict  of  "guilty  of 
printing  and  publishing  only."  The  prosecution  moved  to 
amend  this  to  a  general  verdict  of  guilty,  while  the  defense 
moved  to  discharge  the  prisoner.  Lord  Mansfield  said: 

"if  the  jury  find  that  the  defendant  published  at  all,  they 
find  the  paper  as  charged  in  the  information,  for  that  is 
their  only  inquiry.  ...  I  did  not  leave  it  to  the  jury 
whether  the  paper  was  innocent  or  not.  I  never  do.  ... 
Here  the  jury  did  not  mean  to  find  the  malice  of  the 
defendant,  because  it  was  not  within  their  inquiry;  nor 
did  they  mean  to  exclude  it,  because  it  was  not  within 
their  power  to  exclude  a  legal  deduction." 

The  verdict,  however,  was  not  amended,  but  a  new  trial  was 
ordered.  The  proceedings  were  then  dropped.2  In  the 
Dean  of  St.  Asalph's  case3  the  jury  also  brought  in  a  verdict 
of  "guilty  of  publishing  only."  Justice  Buller  asked  them 
if  they  meant  to  negative  the  truth  of  the  innuendoes,  and 
they  said  that  they  did  not.  He  then  asked  them  if  they 
meant  "guilty  of  publishing,  but  whether  it  is  a  libel  or  not 
you  don't  know,"  and  they  said  that  they  did,  and  the 
verdict  was  entered  accordingly,  though  over  the  strenuous 
objections  of  defendant's  counsel,  Mr.  Erskine. 

The  proceedings  resulting  from  the  publications  of 
Junius's  letter  to  the  King  attracted  wide  attention,  and  the 
rulings  of  the  courts  occasioned  great  dissatisfaction,  and 

1  (1770)  20  State  Trials  895. 

a  In  a  third  case  growing  out  of  the  publication  of  this  letter  there  was 
a  conviction,  but  defendant  escaped  with  a  nominal  punishment  because 
of  his  slight  connection  with  the  matter  it  appearing  merely  that  the 
magazine  containing  the  letter  was  sold  in  his  shop.  Lord  Mansfield  in 
this  case  laid  down  the  doctrine  that  sale  in  a  shop  in  the  due  course  of 
business  throws  upon  the  bookseller  the  burden  of  proving  his  lack  of 
privity.  Rex  v.  Almon  (1770)  20  State  Trials  805. 

*  (1783)  21  State  Trials  847. 


§  126  FREEDOM  OF  SPEECH  353 

resulted  in  a  new  shower  of  pamphlets. z  They  occasioned  a 
heated  debate  in  the  House  of  Commons,2  and  led  Lord 
Camden  to  propound  to  Lord  Mansfield  in  the  House  of 
Lords  the  following  questions  with  regard  to  Wood/a  'Vs  case : 

"  i.  Does  the  opinion  mean  to  declare  that,  upon  the 
general  issue  of  not  guilty  in  the  case  of  a  seditious  libel, 
the  jury  have  no  right  by  law  to  examine  the  innocence  or 
criminality  of  the  paper  if  they  think  fit,  and  to  form  their 
verdict  upon  such  examination?  2.  Does  the  opinion 
mean  to  declare  in  the  case  above  mentioned,  where  the 
jury  have  delivered  in  their  verdict  guilty,  their  verdict 
has  found  the  fact  only  and  not  the  law  ?  3.  Is  it  to  be 
understood  by  this  opinion  that,  if  the  jury  come  to  the 
bar  and  say  that  they  find  the  printing  and  publishing  but 
that  the  paper  is  no  libel,  the  jury  are  to  be  taken  to  have 
found  the  defendant  guilty  generally,  and  the  verdict 
must  be  so  entered  up  ?  4.  Whether  the  opinion  means 
to  say  that,  if  the  judge,  after  giving  his  opinion  of  the 
innocence  or  criminality  of  the  paper,  should  leave  the 
consideration  of  that  matter,  together  with  the  printing 
and  publishing,  to  the  jury,  such  a  direction  would  be 
contrary  to  law  ? ' 

Lord  Mansfield  refused  to  answer.3 

Counsel  for  defendants  in  the  prosecutions  for  seditious 
speech  and  libel  continually  sought  to  vindicate  the  motives 
of  their  clients,  notwithstanding  the  declarations  of  the 
courts  that  motive  or  intent  was  unimportant.  And  it  must 
be  admitted  that  the  crown  officers  gave  openings  to  this 
line  of  defense,  since  they  were  very  prone  to  load  the 
informations  with  the  most  violent  attacks  upon  the 
defendants.  The  most  brilliant  of  the  counsel  who  fought 
the  battles  of  free  speech  was  Erskine.  Probably  his 
greatest  effort  was  in  the  case  of  the  Dean  of  St.  Asalph,4 

1  See  the  note  to  Woodf all's  case,  20  State  Trials,  895,  922. 
a  May,  Constitutional  History  of  England,  vol.  ii,  p.  12. 

3  Stephen,  History  of  the  Criminal  Law  of  England,  vol.  ii,  pp.  325,  326. 

4  (1783)  21  State  Trials  847.    Fox  declared  it  to  be  "the  finest  argu- 

23 


354       THE  AMERICAN  CONSTITUTION     §  126 

in  moving  for  a  new  trial.  He  insists  that  intention  is  a 
necessary  element  of  the  crime,  and  must  be  left  to  the 
jury,  and  that  the  gist  of  the  offense  being  the  tendency 
to  stir  up  discontent,  this  tendency  is  also  a  question  for 
the  jury. 

The  agitation  culminated  in  Fox's  Libel  Act  of  I792.1  It 
was  therein  declared  that  doubt  having  arisen  as  to  whether 
in  a  prosecution  for  libel  the  jury  might 

"give  their  verdict  upon  the  whole  matter  in  issue:  be  it 
therefore  declared  and  enacted  .  .  .  that  on  every  such 
trial  the  jury  sworn  to  try  the  issue  may  give  a  general 
verdict  of  guilty  or  not  guilty  upon  the  whole  matter  put 
in  issue  upon  such  indictment  and  information ;  and  shall 
not  be  required  or  directed  by  the  court  ...  to  find  the 
defendant  or  defendants  guilty  merely  on  the  proof  of  the 
publication  by  such  defendant  or  defendants  of  the  paper 
charged  to  be  a  libel,  and  of  the  sense  ascribed  to  the  same 
in  such  indictment  or  information." 

It  was  provided  that  the  court  might  still,  however,  give  its 
opinion  or  directions  to  the  jury  on  the  matters  in  issue. 
This  did  not  in  terms  change  the  substantive  law  of  libel,  but 
merely  purported  to  establish  in  the  jury  the  right  to  pass 
upon  the  presence  of  all  of  the  elements  of  the  crime.  But 
it  was  interpreted  as  giving  the  jury  the  right  to  pass  upon 
the  intent  of  the  defendant  in  actions  for  seditious  libel, 
and  the  tendency  of  his  words,  and  to  exonerate  the  defend- 
ant for  criticism  of  public  institutions,  laws,  and  men,  unless 
such  criticisms  were  made  with  illegal  intention.2  "In  a 
word,  nothing  short  of  direct  incitement  to  disorder  and 

ment  in  the  English  language,"  and  Lord  Campbell  says,  "Erskine's 
addresses  display  beyond  all  comparison  the  most  perfect  union  of 
argument  and  eloquence  ever  exhibited  in  Westminster  Hall. ' '  Stephen, 
History  of  the  Criminal  Law  of  England,  vol.  ii,  p.  333  n. 

1  32  Geo.  3  c.  60. 

2  Stephen,  History  of  the  Criminal  Law  of  England,  vol.  ii,  p.  359; 
May,  Constitutional  History  of  England,  vol.  ii,  18.     See  DeLolme's 
account  of  the  liberty  of  the  press  in  chapters  12  and  13  of  book  2  of 
his  Constitution  of  England,  written  in  1810. 


§  127  FREEDOM  OF  SPEECH  355 

violence  is  a  seditious  libel."1  The  immediate  accomplish- 
ment of  this  result  under  Fox's  Libel  Act  shows  how  strong 
was  the  popular  conception  of  liberty  of  the  press  and  of 
speech  as  a  right  to  freely  discuss  public  affairs,  as  long  as 
this  privilege  was  not  used  for  the  purpose  of  stirring  up 
violence  or  breach  of  the  law. 2 

§127.  Freedom  of  Speech  and  of  the  Press  under  the 
Constitution.  The  Constitution  of  the  United  States,  as 
originally  adopted,  contained  nothing  on  the  subject  of 
freedom  of  speech  or  of  the  press.  To  be  sure  Charles 
Cotesworth  Pinckney  proposed  a  clause  to  the  effect  that  the 
liberty  of  the  press  should  be  inviolably  preserved  (or 
observed) 3  but  Sherman  answered :  "  It  is  unnecessary  .  .  . 
the  power  of  Congress  does  not  extend  to  the  press."  The 
proposition  was  lost.4  In  many  of  the  state  conventions 
called  to  pass  upon  the  Constitution  it  was  objected  that 
there  was  no  bill  of  rights,  and  that  such  a  bill  of  rights 
should  contain  guaranties  of  freedom  of  speech  and  of  the 
press.  To  such  an  objection,  raised  in  the  South  Carolina 
House  of  Representatives,  Pinckney  himself  replied: 

"With  regard  to  the  liberty  of  the  press,  the  discussion 
of  that  matter  was  not  forgotten  by  the  members  of  the 
convention.  It  was  fully  debated,  and  the  impropriety  of 
saying  anything  about  it  in  the  Constitution  clearly 
evinced.  The  general  government  has  no  powers  but 
what  are  expressly  granted  to  it ;  it  therefore  has  no  power 
to  take  away  the  liberty  of  the  press.  That  invaluable 
blessing,  which  deserves  all  the  encomiums  the  gentleman 
.  has  justly  bestowed  upon  it,  is  secured  by  all  our  state 
constitutions;  and  to  have  mentioned  it  in  our  general 
Constitution  would  perhaps  furnish  an  argument,  here- 

1  Stephen,  History  of  the  Criminal  Law  of  England,  vol.  ii,  p.  375. 

2  It  was  not  until  1843  that  Lord  Campbell's  Act  (6  &  7  Vic.  c.  96) 
allowed  the  truth  of  statements  to  be  pleaded  in  prosecutions  for  libel, 
coupled  with  the  plea  that  "it  was  for  the  public  benefit  that  the  said 
matter  charged  should  be  published." 

3  Farrand,  Records  of  the  Federal  Convention,  vol.  ii,  pp.  335,  617. 

4  Ibid.,  618. 


356       THE  AMERICAN  CONSTITUTION     §  127 

after,  that  the  general  government  had  a  right  to  exercise 
powers  not  expressly  delegated  to  it."1 

Similarly  Hamilton  said : 

"For  why  declare  that  things  shall  not  be  done,  which 
there  is  no  power  to  do  ?  Why,  for  instance,  should  it  be 
said,  that  the  liberty  of  the  press  shall  not  be  restrained, 
when  no  power  is  given  by  which  restriction  can  be 
imposed?"2 

To  this  such  men  as  Jefferson,  who  feared  a  strong  central 
government,  answered  that  it  was  against  possible  abuse  of 
power  that  they  wanted  to  be  guarded,  and  particularly  of 
the  broad  power  to  pass  all  laws  necessary  and  proper  to 
carry  out  the  other  powers  delegated  to  the  central  govern- 
ment. 3  In  fulfillment  of  the  understanding  upon  which  a 
number  of  the  state  conventions  had  ratified  the  Con- 
stitution, several  amendments,  in  the  nature  of  a  bill  of  rights, 
were  submitted  to  the  people  of  the  States  by  the  First  Con- 
gress. Among  these  was  the  provision  that,  "Congress 
shall  make  no  law  .  .  .  abridging  the  freedom  of  speech  or 
of  the  press."4 

In  the  first  place,  was  this  provision  intended  to  entirely 
exclude  Congress  from  legislating  at  all  on  the  subject  of 
speech  and  of  the  press?  Madison,  who  sponsored  the 
amendment  in  Congress,  in  the  report  written  by  him  with 
regard  to  the  Virginia  Resolutions  on  the  Alien  and  Sedition 
Laws  of  1798,  declared  unequivocally  that  under  the 
Constitution  as  originally  adopted  Congress  had  no  power 
whatever  to  legislate  on  these  subjects,  and  that  the  First 
Amendment  was  adopted  to  make  this  limitation  of  power 
even  more  clear. s  Jefferson  was  of  the  same  opinion,  and 
held  the  Sedition  Law  unconstitutional.6  He  held  that 

1  Farrand,  Records  of  the  Federal  Convention,  vol.  iii,  p.  256. 
3  The  Federalist,  No.  84. 

s  Hart,  "Power  of  Government  over  Speech  and  Press,"  29  Yale  L. 
Jour.  410,  412.  .  4  First  Amendment,  ratified  in  1791. 

s  Elliot's  Debates,  vol.  iv,  pp.  571  to  573. 
6  Writings  of  Thomas  Jefferson,  vol.  viii,  pp.  56  to  58. 


§  127  FREEDOM  OF  SPEECH  357 

prosecutions  for  seditious  writings  should  be  had  under  the 
state  laws.1  However,  Congress  early  evinced  a  different 
view  of  the  meaning  of  the  First  Amendment  when  it  passed 
the  first  Sedition  Law  in  1798.  When  the  constitutionality 
of  this  act  was  attacked,  the  subject  was  canvassed  by  the 
Committee  on  Petitions,  and  the  legislation  was  vindicated  as 
part  "of  a  general  system  of  defense,  adapted  to  the  crisis 
of  extraordinary  difficulty  and  danger. " 2  A  majority  of  the 
state  legislatures  supported  the  position  taken  by  Con- 
gress.3 The  question  of  the  constitutionality  of  this  act 
was  not  taken  to  the  Supreme  Court  as  it  expired  by  its  own 
limitations  in  1801,  but  in  the  lower  federal  courts  it  was 
uniformly  upheld  as  necessary  and  proper  legislation  under 
the  circumstances  for  the  preservation  of  the  government 
established  by  the  Constitution.4  The  "necessary  and 
proper"  clause  has  been  given  a  liberal  construction,5  and 
would  seem,  in  the  absence  of  other  specific  limitations, 
to  justify  Congress  in  legislating  with  regard  to 
speech  and  the  press  in  connection  with  its  war 
power  and  its  power  to  maintain  the  government 
established  by  the  Constitution,  and  its  power  to 
govern  territories  and  the  District  of  Columbia,  and  with 
regard  to  the  press  in  connection  with  interstate  commerce 
and  control  of  the  mails.  But  it  was  claimed  that,  even  if 
this  might  be  true  without  the  First  Amendment,  that 
amendment  clearly  negatived  any  right  in  Congress  to  legis- 
late on  the  subjects  of  speech  and  the  press.  This  we  have 
seen  was  denied  by  Congress  itself,  by  the  federal  courts, 
and  by  the  majority  of  the  state  legislatures.  This  position 
has  been  confirmed,  and  it  is  now  thoroughly  established, 
that  the  injunction  against  * '  abridging  the  freedom  of  speech 

1  Writings  of  Thomas  Jefferson,  vol.  iii,  p.  218. 

2  Annals,  5th  Cong.,  iii,  2990. 

3  Story  on  the  Constitution  (5th  ed.)  sec.  1892. 

-»Lyon's  Case  (1798)  Wharton's  State  Trials  333;  Cooper's  Case 
(1800)  ibid.,  659;  Haswell's  Case  (1800)  ibid.,  684;  Calendar's  Case  (1800) 
ibid.,  688. 

s  Art.  I,  sec.  8,  par.  18.  See  the  discussion  of  this  paragraph  in 
sec.  59. 


358       THE  AMERICAN  CONSTITUTION     §  127 

and  of  the  press,"  does  not  prohibit  all  congressional  legis- 
lation on  those  subjects.1  In  the  words  of  the  Supreme 
Court, 

4 "the  First  Amendment  while  prohibiting  legislation 
against  free  speech  as  such  cannot  have  been,  and  ob- 
viously was  not,  intended  to  give  immunity  for  every 
possible  use  of  language.  .  .  .  We  venture  to  believe 
that  neither  Hamilton  nor  Madison,  nor  any  other  com- 
petent person  then  or  later,  ever  supposed  that  to  make 
criminal  the  counseling  of  a  murder  within  the  juris- 
diction of  Congress  would  be  an  unconstitutional  inter- 
ference with  free  speech."2 

What  then  is  the  freedom  of  speech  and  of  the  press 
which  cannot  be  abridged  by  Congress  ? 3  We  know  that  as 
in  England,  so  in  colonial  America,  limitation  and  repression 
of  printing  and  publication  was  attempted,4  but  we  also 
know  that  these  efforts  were  unsuccessful,  and  that  the 
period  just  before,  during  and  after  the  Revolution,  was 
marked  by  the  freest  discussion  of  public  affairs.5 
Americans  immediately  after  the  Revolution  were 
peculiarly  restive  under  governmental  control  and  very 
ready  to  critically  appraise  those  in  public  office.  In  fact  it 
was  the  violent  attacks  made  upon  the  government,  during 

1  Robertson  v.  Baldwin  (1897)  165  U.  S.  275,  281;  Schenck  v.  United 
States  (1919)  249  U.  S.  47. 

a  Frohwerk  v.  United  States  (1919)  249  U.  S.  204,  206.  See  also  the 
limitations  put  upon  the  guaranty  of  religious  freedom  (sec.  125)  and 
the  guaranty  against  involuntary  servitude  (sec.  222). 

3  See  Hall,  "Free  Speech  in  War  Time,"  21  Col.  Law  Rev.  526;  Vance, 
"Freedom  of  Speech  and  of  the  Press,"  2  Minn.  L.  Rev.  239;  Chafee, 
Freedom  of  Speech;  Hart,  "Power  of  Government  over  Speech  and 
Press,"  29  Yale  L.  Jour.  411;  Corwin,  "Freedom  of  Speech  and  Press 
under  the  First  Amendment,  "30  Yale  L.  Jour.  48;  Carroll,  "Freedom  of 
Speech  and  of  the  Press  in  War  Time:  The  Espionage  Act,"  17  Mich.  L. 
Rev.,  621;  Carroll,  "Freedom  of  Speech  and  of  the  Press  in  the  Federal- 
ist Period:  The  Sedition  Act,"  18  Mich.  L.  Rev.  615. 

4  Cooley,  Constitutional  Limitations  (7th  ed.)>  600-602. 

s  See  the  famous  trial  of  Peter  Zenger,  the  New  York  printed  (1735) 
17  Howard's  State  Trials  675. 


§  127  FREEDOM  OF  SPEECH  359 

those  difficult  early  days  of  the  Republic,  when  England 
and  France  were  at  war,  and  partisan  feeling  ran  very  high 
in  this  country,  which  led  to  the  enactment  of  the  Sedition 
Law  of  I798.1 

The  first  section  of  this  act  made  criminal  all  conspiracies 
to  oppose  lawful  measures  of  the  government,  or  to  intimi- 
date or  prevent  any  federal  officer  from  performing  his 
duty.  This  section  was  not  attacked.  Section  two  made 
it  a  crime  to  write,  print,  utter  or  publish 

"any  false,  scandalous,  and  malicious  writing  or  writings 
against  the  government  of  the  United  States,  or  either 
House  of  Congress  of  the  United  States,  or  the  President 
of  the  United  States,  with  the  intent  to  defame  the  said 
government,  or  either  House  of  the  said  Congress,  or  the 
said  President,  or  to  bring  them  or  either  of  them,  into 
contempt  or  disrepute;  or  to  excite  against  them,  or  either 
of  them,  the  hatred  of  the  good  people  of  the  United 
States,  or  to  stir  up  sedition  within  the  United  States;  or 
to  excite  any  unlawful  combinations,  therein,  for  opposing 
or  resisting  any  law  of  the  United  States,  or  any  act  of  the 
President  of  the  United  States,  done  in  pursuance  of  any 
such  law,  or  of  the  powers  in  him  vested  by  the  Consti- 
tution of  the  United  States,  or  to  resist,  oppose  or  defeat 
any  such  law  or  act;  or  to  aid,  encourage  or  abet,  any 
hostile  design  of  any  foreign  nation  against  the  United 
States,  their  people  or  the  government." 

Coupled  with  this  in  the  third  section  was  the  provision  that 
the  defendant  might  give  in  evidence  the  truth  of  the 
matter  charged  in  the  libel,  and  that  the  jury  should  deter- 
mine "the  law  and  the  fact  under  the  direction  of  the  court 
as  in  other  cases."  The  first  provision  of  section  three 
accomplished  what  was  not  accomplished  in  England  until 
the  passage  of  Lord  Campbell's  Act  in  1843.  The  second 
provision  of  section  three  was  undoubtedly  intended  to 
incorporate  the  doctrine  of  Fox's  Libel  Act  of  1792,  but  since 
the  previous  section  of  the  Sedition  Act  had  defined  a 
1  Act  of  July  14,  1798,  i  Stat.  596. 


360       THE  AMERICAN  CONSTITUTION     §  127 

seditious  libel,  while  the  English  act  left  that  to  the  deter- 
mination of  the  jury,  the  result  of  the  American  act  was  very 
different  from  that  of  the  English  statute. 

It  is  apparent  that  the  prohibitions  in  section  two  of  the 
Sedition  Act  fall  into  two  parts.  The  last  clauses  deal  with 
incitement  to  breaches  of  the  law,  and  with  aiding  and 
abetting  hostile  designs  of  foreign  nations.  These  acts 
always  were  and  still  are  criminal  under  the  English  com- 
mon law,  and  if  Congress  can  legislate  at  all  with  regard  to 
speech  and  the  press  it  would  seem  clear  that  it  can  legislate 
to  prevent  such  conduct.  The  earlier  clauses  of  section  two, 
however,  have  to  do  with  words  spoken  and  written  which 
tend  to  bring  the  government,  Congress,  or  the  President 
into  " contempt  or  disrepute,"  or  to  excite  hatred  against 
them.  The  actions  which  were  brought  under  the  act  were 
brought  under  these  clauses,  three1  for  words  written  about 
the  President  and  his  conduct  in  office,  and  one  for  words 
written  against  the  government,  and  words  written  about 
the  treatment  of  one  of  the  former  defendants  while  in  prison, 2 
and  in  all  of  them  the  defendants  were  convicted.  Justice 
Chase  of  the  Supreme  Court,  a  strongly  partisan  supporter 
of  the  existing  Federalist  administration,  sat  in  Cooper's 
Case  and  Calender's  Case.  In  both  he  supported  the 
constitutionality  of  that  part  of  the  act  in  question,  and 
particularly  in  Cooper's  Case  declared  that  freedom  of  the 
press  and  of  speech  is  not  abridged  when  criticisms  of 
government  are  punished.3  Justice  Chase  in  effect  sup- 
ported Congress  in  adopting  the  standard  fixed  by  the 
English  judges  before  Fox's  Libel  Act,  as  the  measure 
of  that  freedom  of  speech  and  of  the  press  which  was 
guarantied  against  abridgment  by  the  First  Amendment — 

'Lyon's  Case  (1798)  Wharton's  State    Trials  333;  Cooper's  Case 
(1800)  ibid.,  659;  Calender's  Case  (1800)  ibid.,  688. 

2  Haswell's  Case  (1800)  ibid.,  684. 

3  "  All  governments  which  I  have  ever  read  or  heard  of  punish  libels 
against  themselves.    If  a  man  attempts  to  destroy  the  confidence  of  the 
people  in  their  officers,  their  supreme  magistrate,  and  their  legislature 
he  effectually  saps  the  foundation  of  the  government."    Cooper's  Case 
(1800)  Wharton's  State  Trials  659,  670. 


§  127  FREEDOM  OF  SPEECH  361 

a  standard  which  English  public  opinion  was  already  repudi- 
ating before  our  Revolution,  and  which  was  in  effect  swept 
away  in  that  country  the  year  after  the  adoption  of  the 
First  Amendment  by  the  passage  of  Fox's  Libel  Act  in  1792. 
Popular  resentment  was  greatly  aroused  by  the  Sedition  Act 
and  by  the  decisions  under  it.  To  be  sure  a  majority  of 
the  state  legislatures,  being  still  in  sympathy  with  the 
national  administration,  expressed  their  approval,1  but 
the  Virginia  and  Kentucky  legislatures  drafted  very  strong 
resolutions  against  the  act,2  and  it  is  pretty  apparent  that 
public  opinion  generally  condemned  the  legislation.  It  is 
supposed  to  have  been  one  of  the  effective  causes  of  Jef- 
ferson's victory  over  the  Federalists  at  the  next  presidential 
election. 

Madison  in  his  famous  Report  on  the  Virginia  Reso- 
lutions3 very  clearly  expresses  his  opinion  of  what  is  meant 
by  freedom  of  the  press  in  this  country.  He  insists  that  it  is 
a  mere  mockery  to  say  that  freedom  from  censorship  con- 
stitutes freedom  of  the  press,  since  severe  and  consistent 
punishment  for  published  criticisms  would  be  as  effective  a 
means  of  suppression.  Besides,  he  declares  that  though  it 
may  be  the  theory  of  the  English  common  law  that  criticism 
of  the  government  and  of  public  officers  is  a  crime,  "the 
freedom  exercised  by  the  press,  and  protected  by  public 
opinion,  far  exceeds  the  limits  prescribed  by  the  ordinary 
rules  of  law."  But,  he  says,  the  principles  of  government 
in  England  and  in  the  United  States,  point,  of  necessity,  to 
different  theories  with  regard  to  freedom  of  the  press  and  of 
speech.  The  theory  of  the  British  Constitution  is  that  the 
king  can  do  no  wrong  and  that  Parliament  is  omnipotent; 
the  theory  of  our  Constitution  is  that  the  people  are  omnipo- 
tent, that  the  Constitution  may  be  changed  by  them,  and 
that  the  government  and  public  officers  are  confined  by  the 
popular  mandate  within  certain  defined  spheres  of  action. 
It  must,  therefore,  follow  that  the  people  may  freely  discuss 

1  Elliot's  Debates,  vol.  iv,  pp.  532  to  539. 
3  Ibid.,  528  to  532  and  540  to  545. 
3  Ibid.,  546  et  seg_. 


362       THE  AMERICAN  CONSTITUTION     §  127 

the  advisability  of  changes  in  the  form  of  government,  and 
the  shortcomings  of  those  in  public  office.  He  declares  that, 

"In  every  State,  probably,  in  the  Union,  the  press  has 
exerted  a  freedom  in  canvassing  the  merits  and  measures 
of  public  men,  of  every  description,  which  has  not  been 
confined  to  the  strict  limits  of  the  common  law.  On  this 
footing  the  freedom  of  the  press  has  stood;  on  this  foun- 
dation it  yet  stands;  .  .  ."* 

It  is  interesting  also  to  see  the  opinion  of  Hamilton,  one 
of  the  leaders  of  the  Federalist  party,  on  this  subject  of  the 
liberty  of  the  press.  In  People  v.  Croswell,2  a  common  law 
action  brought  in  New  York  for  a  libel  of  President  Jefferson, 
Hamilton  argued  brilliantly  against  the  doctrine  that  the 
jury  can  pass  only  upon  the  publication  and  the  meaning 
of  the  writing,  insisting  that  they  should  pass  also  upon  the 
intent  and  the  libelous  nature  of  the  publication.3  He 
declared: 

"The  liberty  of  the  press  consists,  in  my  idea,  in 
publishing  the  truth,  from  good  motives  and  for  justifiable 
ends,  though  it  reflect  upon  the  government,  on  magis- 
trates, or  individuals.  If  it  be  not  allowed,  it  excludes 
the  privilege  of  canvassing  men,  and  our  rulers."4 

This  is  substantially  the  doctrine  of  fair  comment  on 
matters  of  public  interest,  which  has  come  to  be  accepted 
both  in  England  and  in  this  country. s 

1  Elliot's  Debates,  vol.  iv,  pp.  569  to  571. 

2  (1804)  3  Johnson's  Cases  337. 

3  Works  of  Alexander  Hamilton,  vol.  vii,  pp.  333  to  373. 

4  Ibid.,  339.     The  court  however  adopted  Mansfield's  doctrine  of  the 
common  law  and  the  function  of  the  jury.    Upon  the  argument  for  re- 
hearing the  court  was  equally  divided,  Kent  adopting  Hamilton's  view. 
The  prosecuting  attorney  did  not  move  for  judgment.     The  doctrine 
contended  for  by  Hamilton  was  enacted  into  law  in  New  York  the  next 
year,  and  is  now  found  in  the  state  constitution.    See  the  report  of  the 
case,  and  Corwin,  "Freedom  of  Speech  and  Press  under  the  First  Amend- 
ment," 30  Yale  L.  Jour.,  48,  52.    For  the  provisions  in  the  various  state 
constitutions  see  Cooley's  Constitutional  Limitations  (7th  ed.),  596  to  599. 

sQdgers  on  Libel  and  Slander  (5th  ed.),  chap.  8;  Burdick  on  Torts 


§  127  FREEDOM  OF  SPEECH  363 

Story,  writing  in  1833,  says: 

"No  one  can  doubt  the  importance,  in  a  free  govern- 
ment, of  the  right  to  canvass  the  acts  of  public  men  and 
the  tendency  of  public  measures,  to  censure  boldly  the 
conduct  of  rulers,  and  to  scrutinize  closely  the  policy  and 
plans  of  the  government.  This  is  the  great  security  of  a 
free  government.  If  we  would  preserve  it,  public  opinion 
must  be  enlightened;  political  vigilance  must  be  incul- 
cated; free,  but  not  licentious  discussion,  must  be 
encouraged." 

In  illustrating  words  which  may  be  punished  he  speaks  of 

"libels  and  inflammatory  publications,  the  object  of 
which  is  to  excite  sedition  against  the  government,  to  stir 
up  resistance  to  its  laws,  to  urge  on  conspiracies  to  destroy 
it,  to  create  odium  and  indignation  against  virtuous  citi- 
zens, to  compel  them  to  yield  up  their  rights,  or  to  make 
them  the  object  of  popular  vengeance."1 

In  other  words,  he  would  seem  to  hold  constitutional  laws 
for  punishing  ordinary  libels  of  private  individuals,  and 
seditious  libels  tending  to  violence  and  breaches  of  the  law. 
Cooley,  who  wrote  in  1868,  declares  that, 

"The  English  common-law  rule  which  made  libels  on 
the  constitution  or  the  government  indictable,  as  it  was 
administered  by  the  courts,  seems  to  us  unsuited  to  the 
condition  and  circumstances  of  the  people  of  America, 
and  therefore  never  to  have  been  adopted  in  the  several 
States.  If  we  are  correct  in  this,  it  would  not  be  in  the 
power  of  the  state  legislatures  to  pass  laws  which  should 

(3d  ed ) ,  3  7  8  et  seq.  In  the  former  work  it  is  said  (p .  1 93 ) :  "  Every  one  has  a 
right  to  comment,  both  by  word  of  mouth  and  in  writing,  on  matters  of 
public  interest  and  general  concern,  provided  he  does  so  fairly  and  with 
an  honest  purpose.  S  -ch  comments  are  not  actionable,  however  severe 
in  their  terms,  so  long  as  the  wri'  er  or  speaker  truly  states  his  real  opin- 
ion of  the  matter  on  which  he  comments.  Every  citizen  has  full  freedom 
of  speech  on  such  subjects,  but  he  must  not  abuse  it." 
1  Story  on  the  Constitution  (5th  ed.)  sees.  1887  and  1888. 


364       THE  AMERICAN  CONSTITUTION     §  127 

make  mere  criticism  of  the  constitution  or  of  the  measures 
of  government  a  crime,  however  sharp,  unreasonable,  and 
intemperate  it  might  be." 

And  again  he  says  that 

•\~"it  is  difficult  to  conceive  of  any  sound  principle  on  which 
prosecutions  for  libels  on  the  system  of  government  can  be 
based,  except  when  they  are  made  in  furtherance  of 
conspiracy  with  the  evident  intent  and  purpose  to  excite 
rebellion  and  civil  war."1 

Thus  the  matter  stood  when  we  entered  the  World  War. 
Shortly  thereafter  was  passed  what  is  known  as  the  Espion- 
age Act. 2  Section  3  of  title  I  provided  as  follows : 

"Whoever,  when  the  United  States  is  at  war,  shall 
wilfully  make  or  convey  false  reports  or  false  statements 
with  intent  to  interfere  with  the  operation  or  success  of 
the  military  or  naval  forces  of  the  United  States,  or  to 
promote  the  success  of  its  enemies,  and  whoever,  when  the 
United  States  is  at  war,  shall  wilfully  cause  or  attempt  to 
cause  insubordination,  disloyalty,  mutiny,  or  refusal  of 
duty,  in  the  military  or  naval  forces  of  the  United  States, 
or  shall  wilfully  obstruct  or  attempt  to  obstruct  the 
recruiting  or  enlistment  service  of  the  United  States,  to 
the  injury  of  the  service  of  the  United  States,  shall  be 
punished  by  a  fine  of  not  more  than  $10,000  or  imprison- 
ment of  not  more  than  twenty  years,  or  both." 

This  was  a  piece  of  war  legislation,  but  it  was  emphati- 
cally declared  by  the  Supreme  Court  in  the  leading  case  of 
Ex  parte  Milligan3  that  the  operation  of  the  bill  of  rights 
contained  in  the  Constitution  is  not  suspended  by  war. 
This  is  also  recognized  by  the  Supreme  Court  in  all  of  the  cases 
decided  under  the  Espionage  Act.  Convictions  under  each 
of  the  provisions  in  the  act  of  1917  were  upheld,  and  each 

1  Cooley,  Constitutional  Limitations  (yth  ed.)»  613,  614. 

2  Act  of  June  15,  1917,  40  Stat.  217. 

3  (1866)  4  Wallace  2. 


§  127  FREEDOM  OF  SPEECH  365 

of  those  provisions  was  held  constitutional. x  It  would  seem 
clear  that  these  provisions  do  not  of  themselves  interfere 
with  free  speech  or  the  freedom  of  the  press.  They  involve 
either  incitement  to  illegal  acts,  or  an  attempt  to  promote 
the  cause  of  the  enemy  in  time  of  war,  or  to  interfere  with 
the  legitimate  program  of  the  government  for  the  raising  of 
forces  or  the  conduct  of  the  war.  These  acts  it  would  seem 
entirely  proper  for  the  federal  government  to  forbid  and  to 
make  criminal  without  incurring  the  accusation  of  abridging 
the  freedom  of  speech  and  of  the  press  guarantied  by  the 
First  Amendment.  Some  critics  of  the  Espionage  Act  have 
pointed  to  the  fact  that  during  the  Civil  War  no  similar 
legislation  was  enacted.  To  be  sure  the  internal  conditions 
were  such  that  it  was  not  thought  politic  to  enact  such  legis- 
lation during  that  period,  but  that  is  no  evidence  that  there 
was  greater  freedom  of  expression  during  the  Civil  War  than 
during  the  World  War. 

"Without  the  sanction  of  legislation,  the  federal  gov- 
ernment arrested  by  the  thousand  men  whom  it  knew  or 
suspected  of  being  dangerous  or  disaffected,  and  confined 
them  without  charges  and  without  trial  in  military  pris- 
ons as  long  as  it  saw  fit — and  public  opinion  generally  ac- 
quiesced in  this  as  a  fairly  necessary  measure  of  war-time 
precaution.  The  number  of  such  executive  arrests  has 
been  variously  estimated  up  to  as  high  as  38,000.  The 
War  Department  records,  confessedly  very  incomplete, 
show  over  I3,ooo."2 

The  section  of  the  act  of  1917  quoted  above  was  amended 
and  amplified  in  1 9 1 8 . 3     This  act  added  the  following  offenses 

1  Schenck  v.  United  States  (1919)2  49  U.S.  47  (obstruction  of  recruit- 
ing and  enlistment);  Sugarman  v.  United  States  (1919)  249  U.  S.  182 
(attempt  to  cause  insubordination,  disloyalty,  mutiny,  or  refusal  of  duty 
in  military  or  naval  forces);  Schaefer  v.  United  States  (1920)  251  U.  S. 
466  (false  reports  with  intent  to  interfere  with  success  of  our  military 
operations,  or  to  promote  the  success  of  the  enemy). 

2  Hall,  "Free  Speech  in  War  Time,"  21  Col.  L.  Rev.,  526,  527,  referring 
to  4  Rhodes,  History  of  the  United  States  (1900),  230-32  n. 

J  Act  of  May  16,  1918,  40  Stat.  219. 


366       THE  AMERICAN  CONSTITUTION     §  127 

not  covered  by  the  original  act:  saying  or  doing  anything 
with  intent  to  obstruct  the  sale  of  liberty  bonds,  except  by 
way  of  bona  fide  and  not  disloyal  advice ;  urging  curtailment 
of  production  of  anything  necessary  to  the  prosecution  of 
the  war  with  intent  to  hinder  its  prosecution;  wilfully  dis- 
playing the  flag  of  an  enemy;  using  language  intended  to 
incite  resistance  to  the  United  States  or  promote  the  cause 
of  the  enemy;  by  word  or  act  supporting  the  cause  of  the 
enemy  or  opposing  the  cause  of  the  United  States.  None  of 
these  provisions  seems  to  overstep  the  constitutional  inhi- 
bition of  the  First  Amendment.  They  all  are  aimed  at  acts 
or  words  intended  to  induce  breach  of  law,  to  aid  the  enemy, 
or  to  obstruct  the  government  in  the  carrying  out  of  its 
legitimate  program  for  the  conduct  of  the  war. 
The  amendment  also  makes  criminal 

JL.  "whoever,  when  the  United  States  is  at  war,  shall  wilfully 
utter,  print,  write  or  publish  any  disloyal,  profane,  scurri- 
lous, or  abusive  language  about  the  form  of  government  of 
the  United  States,  or  the  Constitution  of  the  United 
States,  or  the  military  or  naval  forces  of  the  United  States, 
or  the  flag  of  the  United  States,  or  the  uniform  of  the 
army  or  navy  of  the  United  States,  or  any  language  in- 
tended to  bring  the  form  of  government  of  the  United 
States,  or  the  Constitution  of  the  United  States,  or  the 
military  or  naval  forces  of  the  United  States,  or  the  flag  of 
the  United  States,  or  the  uniform  of  the  army  or  navy  of 
the  United  States  into  contempt,  scorn,  contumely,  or 
disrepute." 

This  clause  would  seem  to  deserve  all  of  the  criticism  which 
has  in  the  past  been  directed  against  section  two  of  the 
Sedition  Act  of  1798,  discussed  above.  It  would  ignore 
the  right  of  citizens  under  a  constitutional  and  democratic 
government  to  freely  discuss  and  criticize  the  form  of 
government,  the  laws,  and  the  conduct  of  those  in  authority, 
and  would  measure  the  freedom  of  speech  and  of  the  press, 
guarantied  by  the  First  Amendment,  by  the  standards 
repudiated  by  public  opinion  in  England  and  the  United 


§  127  FREEDOM  OF  SPEECH  367 

States  before  the  Revolution,  and  discarded  by  the  English 
common  law  after  Fox's  Libel  Act.  It  is  true  that  the 
Espionage  Act  was  a  war  measure,  and  it  is  true  that  words 
may  be  criminal  in  war  time  which  would  not  be  criminal  in 
time  of  peace,  because  their  direct  tendency  may  be  to  cause 
breach  of  law,  or  interference  with  the  execution  of  the  law 
in  war  time,  when  that  would  not  be  their  tendency  in  time 
of  peace.  But  it  is  only  words  which  tend  to  "bring  about 
the  substantive  evils  that  Congress  has  a  right  to  prevent,"1 
which  may  be  prohibited,  and  it  is  disquieting  to  find  Con- 
gress assuming  the  right  to  prevent  the  speaking  of  words 
simply  because  they  may  tend  to  bring  the  form  of  govern- 
ment or  branches  of  the  government  into  "contempt,  scorn, 
contumely,  or  disrepute."  Abrams  v.  United  States2  seems 
to  be  the  only  case  reaching  the  Supreme  Court  in  which 
an  indictment  was  based  upon  this  clause  of  the  act.  In  the 
indictment  in  that  case  two  counts  were  based  upon  this 
clause,  and  two  counts  upon  other  clauses  in  the  act.  The 
court  declared  that,  since  the  penalty  inflicted  was  no  more 
than  could  lawfully  be  inflicted  under  one  count,  it  was  only 
necessary  to  find  that  the  offense  charged  in  one  count  was 
made  out,  and  the  court  held  that  at  least  the  offense 
charged  in  the  fourth  count — inciting  and  advocating  the 
curtailment  of  production  of  ordnance  and  ammunition — 
as  proved.  Holmes  and  Brandeis,  in  their  dissenting 
opinions,  stated  that  there  was  no  evidence  to  support  the 
counts  framed  under  the  clause  which  we  are  discussing. 
Nothing  is  said  by  any  of  the  court  with  regard  to  its 
constitutionality.  Justice  Holmes'  closing  paragraph  on 
the  general  subject  of  freedom  of  speech  is,  however, 
impressive : 

"Persecution  for  the  expression  of  opinions  seems  to  me  /- 
perfectly  logical.     If  you  have  no  doubt  of  your  premises 
or  your  power  and  want  a  certain  result  with  all  your 
heart  you  naturally  express  your  wishes  in  law  and  sweep 
away  all  opposition.     To  allow  opposition  by  speech 

1  Schenck  v.  United  States  (1919)  249  U.  S.  47,  52. 

2  (1919)  250  U.  S.  616. 


368       THE  AMERICAN  CONSTITUTION     §  127 

seems  to  indicate  that  you  think  the  speech  impotent,  as 
when  a  man  says  that  he  has  squared  the  circle,  or  that 
you  do  not  care  whole-heartedly  for  the  result,  or  that  you 
doubt  either  your  power  or  your  premises.  But  when 
men  have  realized  that  time  has  upset  many  fighting 
faiths,  they  may  come  to  believe  even  more  than  they 
believe  the  very  foundations  of  their  own  conduct  that  the 
ultimate  good  desired  is  better  reached  by  free  trade  in 
ideas — that  the  best  test  of  truth  is  the  power  of  the 
thought  to  get  itself  accepted  in  the  competition  of  the 
market,  and  that  truth  is  the  only  ground  upon  which 
their  wishes  safely  can  be  carried  out.  That  at  any  rate 
is  the  theory  of  our  Constitution.  It  is  an  experiment,  as 
all  life  is  an  experiment.  Every  year  if  not  every  day  we 
have  to  wager  our  salvation  upon  some  prophecy  based 
upon  imperfect  knowledge.  While  that  experiment  is 
part  of  our  system  I  think  that  we  should  be  eternally 
vigilant  against  attempts  to  check  the  expression  of  opin- 
ions that  we  loathe  and  believe  to  be  fraught  with  death, 
unless  they  so  imminently  threaten  immediate  interfer- 
ence with  the  lawful  and  pressing  purposes  of  the  law  that 
an  immediate  check  is  required  to  save  the  country.  I 
wholly  disagree  with  the  argument  of  the  government  that 
the  First  Amendment  left  the  common  law  as  to  seditious 
libel  in  force.  History  seems  to  me  against  the  notion.  I 
had  conceived  that  the  United  States  through  many 
years  had  shown  its  repentance  for  the  Sedition  Act  of 
1798,  by  repaying  fines  that  it  imposed.  Only  the  emer- 
gency that  makes  it  immediately  dangerous  to  leave  the 
correction  of  evil  counsels  to  time  warrants  making  any 
exception  to  the  sweeping  command,  'Congress  shall 
make  no  law  .  .  .  abridging  the  freedom  of  speech.'  Of 
course  I  am  speaking  only  of  expressions  of  opinion  and 
exhortations,  which  were  all  that  were  uttered  here,  but  I 
regret  that  I  cannot  put  into  more  impressive  words  my 
belief  that  in  their  conviction  upon  this  indictment  the 
defendants  were  deprived  of  their  rights  under  the 
Constitution  of  the  United  States." 


§  127  FREEDOM  OF  SPEECH  369 

All  of  the  provision  of  the  Espionage  Act  punishing 
written  or  spoken  utterances  require  that  there  shall  be  an 
intention  to  accomplish  the  ends  declared  in  the  statute. 
In  Schenck  v.  United  States,1  the  first  case  which  came  be- 
fore the  Supreme  Court  under  the  Espionage  Act,  Justice 
Holmes  declared  for  a  unanimous  court  that 

"The  question  in  every  case  is  whether  the  words 
used  are  used  in  such  circumstances  and  are  of  such  a 
nature  as  to  create  a  clear  and  present  danger  that  they 
will  bring  about  the  substantive  evils  that  Congress 
has  a  right  to  prevent." 

This  would  seem  to  be  as  far  as  the  restrictions  of  free  speech 
ought  to  go.  It  would  seem  to  furnish  adequate  protection 
against  illegal  agitation,  being  analogous  to  the  standard  by 
which  criminal  attempts  are  measured. 2  To  go  further  and 
to  assume  to  punish  words  simply  because  they  may  have 
an  indirect  or  remote  tendency  to  cause  disturbances  and 
breaches  of  the  law,  and  also  to  deduce  defendants'  intent 
from  this  tendency,  would  practically  make  possible  the 
punishment  of  all  criticisms  of  government  or  of  existing 
laws.  It  was  because  they  felt  that  the  majority  of  the 
court  were  departing  from  the  test  set  forth  in  the  Schenck 
case,  quoted  above,  and  were  upholding  convictions  ob- 
tained only  upon  evidence  of  remote  and  indirect  tendency 
of  the  defendant's  words  to  accomplish  the  ends  declared  in 
the  statute,  that  Justice  Holmes  and  Justice  Brandeis  dis- 
sented in  Schaefer  v.  United  States3  and  Pierce  v.  United 
States.4  In  Abrams  v.  United  States5  they  dissented  upon 
this  same  ground,  and  also  upon  the  ground  that  there  was 
no  sufficient  evidence  of  intent.  The  arguments  of  the 
minority  in  these  cases  is  more  convincing  than  that  of  the 
majority. 

'  (1919)  249  U.  S.  47,  52. 

aChafee,  Freedom  of  Speech,  51;  Schaefer  v.  United  States  (1920) 
251  U.  S.  466,  486. 

*  (1920)  251  U.  S.  466.  Justice  Clarke  also  dissented,  though  not  on 
the  broad  grounds  taken  by  Justice  Holmes  and  Justice  Brandeis. 

« (1920)  252  U.  S.  239.  *  (1919)  250  U.  S.  616. 

24 


370       THE  AMERICAN  CONSTITUTION     §  128 

§  1 28.  Control  of  Freedom  of  the  Press  under  the  Postal  and 
Interstate  Commerce  Powers.  We  have  seen1  that  Congress 
may  determine  what  classes  of  things  may  be  transmitted 
by  mail,  and  may  exercise  this  power  for  the  protection  of 
the  morals  of  the  community  or  to  protect  the  public 
against  fraud.  Title  XII  of  the  Espionage  Act  declares  any 
writing  foridden  by  the  act  to  be  non-mailable,  forbids  its 
conveyance  or  delivery,  and  makes  the  use  of  the  mails  for 
the  transmission  of  such  matter  a  crime.2  This  provision 
would  seem  to  be  constitutional,  and  was  upheld  in  Masses 
Publishing  Company  v.  Patten3  and  in  Milwaukee  Publishing 
Company  v.  Burleson.4 

We  have  seen  that  under  the  interstate  commerce  clause 
of  the  Constitution  Congress  has  been  upheld  by  the  Su- 
preme Court  in  developing  a  very  extensive  police  power  for 
the  protection  of  the  morals  and  safety  of  the  community 
at  large. s  It  would  seem  clear,  therefore,  that  writings,  the 
publication  of  which  can  be  prohibited,  may  by  federal 
statute  be  excluded  from  interstate  commerce.  In  fact  the 
Trading  with  the  Enemy  Act6  did  make  unlawful  the  trans- 
portation as  well  as  the  publication  of  newspapers  or  maga- 
zines printed  in  German  containing  any  news  or  comment  on 
the  government  or  the  war  or  international  relations  or 
policies  unless  a  translation  was  filed  with  the  local  post- 
master, or  unless  a  permit  was  obtained  from  the  President. 7 

1  Sec.  123. 

2  Act  of  June  15,  1917,  40  Stat.  217,  amended  by  Act  of  May   16, 
1918,  40  Stat.  219.    See  Chafee,  Freedom  of  Speech,  106;  Carroll,  "Free- 
dom of  Speech  and  the  Press  in  War  Time,"  17  Mich.  L.  Rev.,  621,  629. 

J  (1917)  246  Fed.  24.  The  Circuit  Court  of  Appeals  reversed  Judge 
Hand's  injunction  directing  the  postmaster  not  to  exclude  the  Masses 
from  the  mail.  Judge  Hand's  opinion  contains  an  excellent  discussion, 
235  Fed.  535. 

4  (1921)  255  U.  S.  407.  Justice  Holmes  and  Justice  Brandeis  dissented 
on  the  ground  that  there  was  no  authorization  to  the  Postmaster-Gen- 
eral to  deny  second  class  privileges  with  regard  to  future  numbers  of  a 
paper  because  previous  issues  contained  unmailable  matter. 

s  Sec.  91.  6  Act  of  Oct.  6,  1917,  40  Stat.  411. 

7 Carroll,  "Freedom  of  Speech  and  of  the  Press  in  War  Time,"  17 
Mich.  L.  Rev.,  621,  636  et  seq. 


§  129  FREEDOM  OF  SPEECH  371 

§129.  Censorship.  It  was  originally  proposed  to  incor- 
porate into  the  Espionage  Act  a  provision  making  it  a  crime 
to  violate  any  regulation  which  the  President  might  make, 
as  to  the  collection,  publication,  and  communication  of  in- 
formation with  regard  to  the  forces  of  the  United  States,  or 
with  regard  to  military  operations,  or  with  regard  to  matters 
concerning  the  public  defense.1  This  would  in  effect  have 
resulted  in  a  censorship  of  the  press  by  the  executive  depart- 
ment. This  proposal  had  the  support  of  the  administration 
but  was  violently  attacked  by  the  press  of  the  country,  and 
strongly  criticized  upon  the  floor  of  Congress.  It  was 
finally  abandoned  for  an  agreement  for  a  voluntary  censor- 
ship entered  into  by  the  newspapers. 2 

The  constitutionality  of  the  legislation  which  was  pro- 
posed would  seem  exceedingly  doubtful.  We  have  seen  in 
our  discussion  above  that  licensing  of  publications  was 
abandoned  in  England  in  1694,  and  Blackstone  in  1769 
declared  that  liberty  of  the  press  "consists  in  laying  no 
previous  restraints  upon  publication,  and  not  in  freedom 
from  censure  for  criminal  matter  when  published. " 3  Those 
who  defended  the  Sedition  Act  of  1 798  claimed  that  freedom 
of  speech  and  of  the  press  was  guarantied  by  the  First 
Amendment  in  the  sense  in  which  Blackstone  had  defined 
freedom  of  the  press,  and  that,  therefore,  the  Sedition  Act 
was  not  unconstitutional  because  it  did  not  put  any  previous 
restriction  upon  publication,  freely  admitting  that  previous 
restraint  would  be  unconstitutional.4  In  Patterson  v.  Col- 
orado3 the  Supreme  Court,  in  upholding  a  punishment  for 
contempt,  says  that 

"the  main  purpose  of  such  constitutional  provisions  [in 
the  First  Amendment]  is  'to  prevent  all  such  previous 

1  65th  Cong.,  ist  sess.  1917,  p.  766. 

3  Carroll,  "Freedom  of  Speech  and  of  the  Press  in  War  Time,"  17 
Mich.  L.  Rev.,  621,  622  to  629.  3  Bk.  IV,  sec.  168. 

*  Madison's  Report  on  the  Virginia  Resolutions,  4  Elliot's  Debates, 
546,  569  et  seq.;  Chafee,  Freedom  of  Speech,  8;  Carroll,  "Freedom  of 
Speech  and  of  the  Press  in  the  Federalist  Period,"  18  Mich.  L.  Rev., 
615,  630  et  seq.  s  (1907)  205  U.  S.  454,  462. 


372       THE  AMERICAN  CONSTITUTION     §  129 

restraints  upon  publication  as  had  been  practiced  by  other 
governments'  and  they  do  not  prevent  the  subsequent 
punishment  of  such  as  may  be  deemed  contrary  to  the 
public  welfare.  .  .  .  The  preliminary  freedom  extends 
as  well  to  the  false  as  to  the  true ;  the  subsequent  punish- 
ment may  extend  as  well  to  the  true  as  to  the  false." 

The  legislation  which  was  proposed  was  of  course  a  war 
measure,  and  it  may  be  said  that  punishment  after  publi- 
cation will  not  be  a  sufficient  safeguard  against  publication 
of  information  important  to  the  enemy,  but,  if  the  First 
Amendment  means  that  there  shall  be  no  previous  restraint 
upon  publication,  this  is  effective  in  war  time  as  well  as  in 
time  of  peace.  Furthermore,  a  provision  for  previous  licens- 
ing or  censorship  may  be  violated,  as  well  as  laws  which  lay 
one  open  only  to  subsequent  punishment ;  and  the  liability 
to  subsequent  punishment,  if  supported  by  public  opinion, 
will  be  very  effective  to  prevent  improper  publications. 

In  Mutual  Film  Corporation  v.  Industrial  Commission  of 
Ohio1  the  Supreme  Court  upheld  a  state  statute  for  the 
censorship  of  moving  picture  films  as  not  being  in  conflict 
with  the  provision  of  the  state  constitution  with  regard 
to  freedom  of  speech  and  the  press.  The  court  held  that 
such  constitutional  provisions  are  meant  to  safeguard  free 
expression  of  opinion,  and  do  not  apply  to  theatrical  per- 
formances or  moving  pictures  which  are  subject  to  censor- 
ship under  the  police  power. 

Several  state  decisions,  under  provisions  in  state  con- 
stitutions guarantying  freedom  of  speech  and  of  the  press, 
have  held  that  the  courts  were  thereby  forbidden  to  enjoin 
any  publications  however  serious  or  irreparable  may  be  the 
threatened  damage. 2  It  is  said  of  these  cases  in  the  article 
just  referred  to3  that, 

' '  It  would  seem  more  reasonable,  and  far  more  practica- 
ble to  say  that  the  constitutional  provision  in  question  pro- 

1  (1915)  236  U.  S.  230. 

a  See  the  discussion  of  these  cases  in  "Freedom  of  Speech  and  of  the 
Press,"  by  W.  R.  Vance,  2  Minn.  L.  Rev.,  239,  253  to  255. 
» Ibid.,  255- 


§  130  FREEDOM  OF  SPEECH  373 

hibits  any  other  previous  restraints  than  those  recognized 
and  accepted  at  the  time  the  Constitution  was  adopted, 
thus  leaving  the  courts  free  to  exercise  their  equity  pow- 
ers in  accordance  with  settled  principles  of  justice." 

It  is  believed  that  this  proposition  is  sound.  In  Gompers  v. 
Buck  Stove  and  Range  Company1  it  appeared  that  Gompers 
and  others  had  been  enjoined  from  boycotting  the  Buck 
Company,  and  from  publishing  any  statement  that  there 
was  such  a  boycott,  and  were  adjudged  in  contempt  for 
publishing  certain  statements  in  violation  of  this  injunction. 
Upon  appeal  to  the  Supreme  Court  it  was  contended  that 
this  injunction  was  an  unconstitutional  abridgment  of  free 
speech.  The  Supreme  Court  held  that  the  constitutional 
provision  as  to  free  speech  was  not  involved,  but  only  the 
right  to  enjoin  a  boycott  however  carried  out.  In  fact,  how- 
ever, the  case  would  seem  to  support  the  right  of  a  court  to 
enjoin  words  or  writings  in  pursuance  of  established  equit- 
able principles. 

§130.  Right  of  Assembly  and  of  Petition.  Finally  the 
First  Amendment  provides  that,  "Congress  shall  make  no 
law  .  .  .  abridging  .  .  .  the  right  of  the  people  peaceably 
to  assemble,  and  to  petition  the  government  for  a  redress  of 
grievances."  The  Bill  of  Rights  of  1689  provided  for  the 
right  to  petition  the  king,  and  statutes  before  and  since  have 
made  similar  provision  for  presenting  petitions  to  Parlia- 
ment.2 Story  says  of  this  constitutional  provision: 

"This  would  seem  unnecessary  to  be  expressly  provided 
for  in  a  republican  government,  since  it  results  from  the 
very  nature  of  its  structure  and  institutions.  It  is  im- 
possible that  it  could  be  practically  denied  until  the  spirit 
of  liberty  had  wholly  disappeared,  and  the  people  had 
become  so  servile  and  debased  as  to  be  unfit  to  exercise 
any  of  the  privileges  of  freemen."3 

1  (1911)  221  U.  S.  418. 
37  Black.  Comm.  sec.  198. 

3  Story  on  the  Constitution  (sth  ed.),  sec.  1894.  See  also  Rawle  on  the 
Constitution,  124;  Cooley,  Constitutional  Limitations  (/th  ed.),  497. 


374       THE  AMERICAN  CONSTITUTION     §  130 

The  Supreme  Court  of  the  United  States  said  of  this  con- 
stitutional provision,  in  the  case  of  United  States  v.  Cruik- 
shank1: 

"The  right  of  the  people  peaceably  to  assemble  for  law- 
ful purposes  existed  long  before  the  adoption  of  the 
Constitution  of  the  United  States.  In  fact,  it  is,  and 
always  has  been,  one  of  the  attributes  of  citizenship 
under  a  free  government.  ...  It  is  found  wherever 
civilization  exists.  It  was  not,  therefore,  a  right  granted 
to  the  people  by  the  Constitution.  The  government  of 
the  United  States  when  established  found  it  in  existence, 
with  the  obligation  on  the  part  of  the  States  to  afford  it 
protection.  .  .  .  The  particular  amendment  now  under 
consideration  assumes  the  existence  of  the  right  of  the 
people  to  assemble  for  lawful  purposes,  and  protects  it 
against  encroachment  by  Congress.  The  right  was  not 
created  by  the  amendment ;  nor  was  its  continuance  guar- 
antied, except  as  against  congressional  interference.  For 
their  protection  in  its  enjoyment,  therefore,  the  people 
must  look  to  the  States.  The  power  for  that  purpose  was 
originally  placed  there,  and  it  has  never  been  surrendered 
to  the  United  States.  The  right  of  the  people  peaceably 
to  assemble  for  the  purpose  of  petitioning  Congress  for  a 
redress  of  grievances,  or  for  anything  else  connected  with 
the  powers  or  the  duties  of  the  national  government,  is  an 
attribute  of  national  citizenship,  and  as  such  under  the 
protection  of,  and  guarantied  by,  the  United  States.  The 
very  idea  of  a  government,  republican  in  form,  implies  a 
right  on  the  part  of  its  citizens  to  meet  peaceably  for  con- 
sultation in  respect  to  public  affairs  and  to  petition  for 
a  redress  of  grievances." 

1  (1875)  92  U.  S.  542,551,552 


CHAPTER  XIV 

THE  SECOND  AND  THIRD  AMENDMENTS1 

§131.  The  Second  Amendment.  The  declaration  in  the 
Second  Amendment  is  that,  "A  well-regulated  militia  being 
necessary  to  the  security  of  a  free  state,  the  right  of  the 
people  to  keep  and  bear  arms  shall  not  be  infringed."  The 
right  to  keep  and  bear  arms  is  not  granted  by  this  amend- 
ment ;  it  constitutes  only  a  denial  of  the  power  to  limit  that 
right.  And  this  limitation,  like  those  contained  in  all  the 
others  of  the  first  ten  amendments,  is  directed  only  against 
the  national  government.2 

The  litigation  which  has  occurred  with  regard  to  the  right 
to  bear  arms  has  arisen  under  provisions  in  state  constitutions 
similar  to  those  in  the  Second  Amendment.  It  is  well 
settled  that  the  right  is  not  unqualified,  but  is  subject  to 
the  police  power  of  the  States.  Laws  are  constitutional 
which  prohibit  individuals  from  carrying  concealed  weapons 
or  from  bearing  arms  except  as  members  of  lawfully 
organized  bodies.  The  right  guarantied  is  that  to  bear 
arms  in  the  common  defense,  not  to  carry  such  arms  as  the 
individual  may  choose  to  be  used  in  private  affrays.3  The 
Supreme  Court  of  the  United  States  has  said  that  "the  right 
of  the  people  to  keep  and  bear  arms  (Art.  II)  is  not  infringed 
by  laws  prohibiting  the  carrying  of  concealed  weapons."4 
But  the  Supreme  Court  has  also  said  that  a  State  may  not 

1  These  amendments  together  with  the  others  of  the  first  ten  were 
adopted  in  1791. 

2  United  States  v.  Cruikshank  (1875)  92  U.  S.  542,  553. 

3  Commonwealth  v.  Murphy  (1896)  166  Mass.  171 ;  Salina  v.  Blakesley 
(1905)  72  Kan.  230;  State  v.  Keet  (1916)  269  Mo.  206;  notes  in  3  L.  R.  A. 
(N.  S.)  168  and  L.  R.  A.  1917  C  63. 

<  Robertson  v.  Baldwin  (1897)  165  U.  S.  275,  282. 

375 


376       THE  AMERICAN  CONSTITUTION     §  131 

prohibit  its  citizens  to  possess  and  bear  arms  and  so  destroy 
the  resources  of  the  federal  government  for  the  protection  of 
public  security,  but  it  may  regulate  the  right  so  long  as  it 
does  not  conflict  with  national  legislation.1 

When  the  Second  Amendment  is  read  in  connection  with 
section  eight  of  the  first  article  of  the  Constitution,  it  is 
apparent  that  the  colonists  shared  the  suspicion  which  their 
English  ancestors  had  shown  of  a  standing  army,  and  their 
preference  for  a  locally  organized  militia.  Congressional 
appropriations  for  a  national  army  are  limited  to  two  years. 
The  militia  may  be  called  into  the  service  of  the  Union  in 
stated  circumstances,  but  the  States  are  accorded  definite 
rights  in  the  officering  and  training  of  this  body.  Appar- 
ently, the  constitutional  scheme  contemplates  an  organiza- 
tion similar  to  that  provided  for  by  Parliament  under  the 
Commonwealth,  which  was  "a  national  army  raised  from 
the  counties  and  placed  under  the  guidance  of  country 
gentlemen."  Such  a  scheme  is  quite  consistent  with  the 
policy  of  universal  military  service ;  a  policy  which  a  modern 
writer  has  reminded  us  germinated  in  England  during  the 
Commonwealth,2  and  which  has  been  declared  con- 
stitutional by  the  Supreme  Court.3  Undoubtedly  the 
reservation  to  the  States  of  the  militia  power  by  the  section 
referred  to  above,  was  felt  to  be  desirable  both  as  being  in 
accord  with  the  principles  of  local  self-government,  and  as 
diminishing  the  occasion  for  the  exercise  by  Congress  of 
the  power  to  raise  armies.  But  the  ultimate  supremacy  of 
the  latter  power  when  its  exercise  is  essential  to  the  national 
welfare  is  no  longer  subject  to  doubt. 4 

It  is  interesting  to  note  that  the  amendment  as  proposed 
by  Madison  to  the  First  Congress  contained  a  clause  provid- 
ing that  "no  person  religiously  scrupulous  of  bearing  arms 
shall  be  compelled  to  render  military  service  in  person." 
This  provision  was  retained  in  substance  by  the  committees 

1  Presser  v.  Illinois  (1886)  116  U.  S.  252. 
a  Glenn,  The  Army  and  the  Law,  17. 
J  Selective  Draft  Cases  (1918)  245  U.  S.  366. 
<  See  sees.  97  and  176. 


§  132  SECOND  AND  THIRD  AMENDMENTS  377 

which  considered  the  amendment,  but  was  dropped  by 
Congress  before  the  amendment  was  submitted  to  the 
people. x 

§132.  The  Third  Amendment.  Among  the  complaints 
made  against  the  king  in  the  Declaration  of  Independence 
were  the  keeping  of  standing  armies  in  the  colonies  without 
the  consent  of  their  legislatures,  the  rendering  of  the  mili- 
tary independent  of  and  superior  to  the  civil  power,  and  the 
quartering  of  large  bodies  of  armed  troops  among  the  colo- 
nists. The  Petition  of  Right  presented  to  Charles  First  in 
1628  had  made  a  similar  complaint  against  the  quartering 
of  troops  upon  the  people  without  their  consent.  Fear  that 
the  new  central  government  might  indulge  in  similar 
practices  led  to  the  provision  in  the  Constitution  that 
appropriations  for  the  maintenance  of  the  army  can  only  be 
made  for  two  years,  and  later  to  the  addition  of  the  Third 
Amendment.  This  amendment  declares  that,  "No  soldier 
shall,  in  time  of  peace,  be  quartered  in  any  house  without 
the  consent  of  the  owner,  nor  in  time  of  war,  but  in  a 
manner  to  be  prescribed  by  law."  This  protects  the 
householder  from  any  invasion  of  his  privacy  by  the 
military  authorities  in  time  of  peace,  and  from  any  such 
invasion  in  time  of  war,  except  as  authorized  by  Congress. 

1  i  Annals  451;  Thorpe's  Constitutional  History  of  the  United  States, 
vol.  ii,  p.  225. 


CHAPTER  XV 

FEDERAL    CRIMINAL    LAW    AND    SAFEGUARDS    OF    THOSE 
ACCUSED   OF   CRIMES 

§133.  Federal  Criminal  Law.1  The  municipal  law  in 
force  in  each  colony  at  the  time  of  the  Revolution  continued 
in  force  in  the  States  after  the  Revolution,  except  as  ab- 
rogated by  state  constitutions  and  statutes.  This  law 
consisted  of  the  common  law  and  statutes  of  England  as 
found  applicable  to  conditions  in  America,  usages  which 
had  grown  up  in  the  colonies  and  which  had  come  to  have 
the  force  of  law,  and  enactments  of  colonial  legislatures.2 
One  of  the  grounds  of  the  attack  which  Jefferson  led  against 
the  federalist  judiciary  was  that  the  judges  were  without 
constitutional  authority  claiming  the  right  to  try  and 
punish  persons  for  crimes  against  the  United  States  accord- 
ing to  common  law  precedents  without  the  support  of  any 
federal  statute.  This  they  did  in  fact  do  for  a  number  of 
years.3  And  this  undoubtedly  reflected  the  opinion  of 
most  of  the  members  of  the  Supreme  Court  at  that  time.4 
Justice  Chase  of  the  Supreme  Court,  however,  held  the 
view  that  there  was  no  common  law  of  crimes  of  the  United 

1  With  regard  to  impeachments  see  sec.  40. 

3  Guardians  of  the  Poor  v.  Greene  (1813)  5  Binney  (Pa.)  554;  Com- 
monwealth v.  Chapman  (1848)  13  Metcalf  (Mass.)  68. 

aHenfields  Case  (1793)  Fed.  Cas.  6,  360;  United  States  v.  Ravara 
(1793)  2  Dallas  297;  United  States  v.  Warrall  (1798)  2  Dallas  384; 
William's  Case  (1799)  Fed.  Cas.  17,  708.  And  see  Beveridge's  Life  of 
John  Marshall,  vol.  iii,  pp.  23  to  28. 

4  See  the  note  to  United  States  v.  Warrall  as  reported  in  Fed.  Cas. 
1 6,  766.     We  find  Jay,  Iredell  and  Wilson  expressing  their  opinions  at 
various  stages  of  Henfield's  Case,  and  Ellsworth  expressing  his  in  Wil- 
liam's Case. 

378 


§  133  FEDERAL  CRIMINAL  LAW  379 

States.1  His  position  was  based  upon  two  propositions. 
The  first  was  that  while  before  the  Revolution  there  was  a 
body  of  law  enforceable  in  each  colony  which  continued  in 
force  after  the  Revolution,  there  was  no  such  body  of  law 
applicable  throughout  the  United  States  which  could  be 
said  to  remain  in  force  after  severance  from  England.  The 
second  was  that  the  Constitution  is  the  source  of  all  powers 
belonging  to  each  branch  of  the  national  government;  the 
Constitution  does  not  adopt  the  common  law  of  crimes  for 
the  United  States,  and  it  is  "as  essential  that  Congress 
should  define  the  offenses  to  be  tried,  and  apportion  the 
punishment  to  be  inflicted,  as  that  they  should  erect  courts 
to  try  the  criminal,  or  to  pronounce  a  sentence  on  convic- 
tion." The  view  of  Chase  was  acted  upon  without  argu- 
ment by  the  Supreme  Court  in  i8i2,2  and  has  been  acted 
upon  ever  since.3  The  common  law  is  resorted  to  for  the 
definition  of  terms  used  in  the  Constitution  or  statutes, 
when  such  terms  are  not  there  defined.4 

The  constitutional  provision,  which  gives  Congress 
authority  to  make  all  laws  necessary  and  proper  for  carrying 
into  execution  the  powers  given  to  the  national  government 
by  that  instrument,5  includes,  of  course,  the  right  to  enact 
criminal  legislation  for  the  purpose  of  enforcing  its  will  in 
the  fields  which  have  been  delegated  to  it.  In  pursuance  of 
this  power  a  very  large  body  of  federal  criminal  law  has  been 
enacted.6  The  Constitution  does,  however,  make  specific 
provision  for  certain  classes  of  crimes.  Congress  is  ex- 
pressly given  power  "to  provide  for  the  punishment  of 

1  United  States  v.  Warrall  (1798)  2  Dallas  384. 

a  United  States  v.  Hudson  (1812)  7  Cranch  32. 

*  See  the  doubts  expressed  in  United  States  v.  Coolidge  (1816)  I 
Wheaton  415.  But  see  United  States  v.  Britton  (1882)  108  U.  S.  199; 
United  States  v.  Eaton  (1892)  144  U.  S.  677,  688;  United  States  in  Glad- 
well  (1917)  243  U.  S.  476,  485.  With  regard  to  whether  there  is  a  common 
law  of  the  United  States  in  civil  actions  see  sec.  48. 

« United  States  v.  Smith  (1820)  5  Wheaton  153;  United  States  v. 
Carll(i88i)  105  U.  S.  611. 

3  Art.  I,  sec.  8,  par.  18.  For  a  discussion  of  this  paragraph  see  sec.  59. 

6  See  Zoline's  Federal  Criminal  Law  and  Procedure. 


380       THE  AMERICAN  CONSTITUTION     §  133 

counterfeiting  the  securities  and  current  coin  of  the  United 
States."1  This  is  held  to  carry  with  it  by  implication  the 
power  to  punish  for  uttering  counterfeit  currency.2  The 
Constitution  also  gives  to  Congress  the  power  "to  define 
and  punish  piracies  and  felonies  committed  on  the  high 
seas  and  offenses  against  the  law  of  nations."3  Congress 
has  acted  upon  its  power  to  define  and  punish  piracies,  and 
has  included  in  this  definition  engaging  in  the  slave  trade.4 
It  has  also  legislated  with  regard  to  felonies  on  the  high 
sea. s  Under  its  power  to  define  and  punish  offenses  against 
the  law  of  nations,  it  has  legislated  for  the  protection  of 
public  ministers,  and  with  regard  to  passports  and  safe- 
conducts.6  Congress  also  made  it  a  crime  to  counterfeit 
within  our  boundaries  the  securities  of  foreign  governments, 
and  this  was  upheld  as  constitutional  by  the  Supreme  Court 
under  the  power  to  define  and  punish  offenses  against  the 
law  of  nations.7 

In  order  to  prevent  possible  abuses  with  regard  to  the 
crime  of  treason  very  specific  provisions  were  incorporated 
into  the  Constitution,  as  follows : 

"Treason  against  the  United  States  shall  consist  only 
in  levying  war  against  them,  or  in  adhering  to  their 
enemies,  giving  them  aid  and  comfort.  No  person  shall 
be  convicted  of  treason  unless  on  the  testimony  of  two 
witnesses  to  the  same  overt  act,  or  on  confession  in  open 
court.  The  Congress  shall  have  the  power  to  declare  the 
punishment  of  treason,  but  no  attainder  of  treason  shall 
work  corruption  of  blood  or  forfeiture  except  during  the 
life  of  the  person.8 

1  Art.  I,  sec.  8,  par.  6. 

2  United  States  v.  Marigold  (1850)  9  Howard  560.    The  right  to  pun- 
ish the  bringing  into  the  country  of  counterfeit  coin  is  based  upon  this 
power  and  the  power  over  foreign  commerce. 

^  Art.  I,  sec.  8,  par.  10. 

4  Zoline's  Federal  Criminal  Law  and  Procedure,  chaps.  55  and  57. 

s  Ibid.,  chap.  57. 

6U.  S.  Rev.  Stats.,  sec.  4062. 

7  United  States  v.  Arjona  (1887)  120  U.  S.  479. 

8  Art.  Ill,  sec.  3. 


§  134  FEDERAL  CRIMINAL  LAW  381 

Mere  conspiracy  to  overturn  the  government  is  not  treason; 
there  must  at  least  be  an  actual  assembling  of  men  for  that 
purpose  to  constitute  a  levying  of  war. I  Nor  is  the  opposi- 
tion to  the  enforcement  of  a  law  by  armed  force  treason 
unless  undertaken  for  the  purpose  of  overthrowing  the 
government,  or,  at  least,  of  preventing  the  general  execution 
of  some  governmental  power,  such  as  that  of  taxation  or  the 
administration  of  justice. 2  Adhering  to  the  enemy,  giving 
him  aid  and  comfort  would  include  supplying  him  with 
warlike  materials  or  with  information.3  Other  acts  which 
are  injurious  to  the  government,  but  which  do  not  come 
within  the  definition  of  treason  may,  of  course,  be  made 
criminal  by  congressional  legislation. 4  "  Treason  is  a  breach 
of  allegiance,  and  can  be  committed  by  him  only  who  owes 
allegiance  either  perpetual  or  temporary."5  But  an  alien 
who  is  within  the  territorial  limits  of  the  United  States 
does  owe  a  temporary  allegiance  to  its  government,  in  the 
sense  that  he  is  amenable  to  its  laws.  The  Supreme  Court 
has  said  of  such  a  person, 

"  He  owed  allegiance  to  the  government  of  the  country 
so  long  as  he  resided  within  its  limits,  and  can  claim  no 
exemption  from  the  statutes  passed  to  punish  treason, 
or  the  giving  of  aid  or  comfort  to  the  insurgent  States. 
The  law  on  this  subject  is  well  settled  and  universally 
recognized."6 

§134.  Habeas  Corpus.  The  Constitution  declares  that, 
''The  writ  of  habeas  corpus  shall  not  be  suspended,  unless 

1  Ex  parte  Bollman  (1807)  4  Cranch  75.  See  also  Burr  Trials,  and  the 
account  of  these  proceedings  in  Beveridge's  Life  of  John  Marshall, 
vol.  iii,  chaps.  6  to  9. 

a  United  States  v.  Vigol  (1795)  2  Dallas  346;  United  States  v.  Mitchell 
(1795)  2  Dallas  348;  United  States  v.  Hoxie  (1814)  I  Paine  265. 

3  United  States  v.  Greathouse  (1863)  4  Sawyer  457;  United  States  v. 
Pryor  (1814)  3  Washington  234;  Zoline's  Federal  Criminal  Law  and 
Procedure,  sec.  662. 

4  Zoline's  Federal  Criminal  Law  and  Procedure,  sees.  664  to  669. 

s  Marshall  in  United  States  v.  Wiltberger  (1820)  5  Wheaton  76,  97. 
6  Radich  v.  Hutchins  (1877)  95  U.  S.  210,  211. 


382    THE  AMERICAN  CONSTITUTION  §§135, 136 

when  in  cases  of  rebellion  or  invasion  the  public  safety  may 
require  it."1  This  clause  was  proposed  by  Pinckney  and 
was  agreed  to  with  very  little  debate,  although  Rutledge 
and  Wilson  thought  that  there  would  never  be  any  reason 
for  suspension.2  We  have  already  dealt- with  the  power  of 
the  federal  courts  to  issue  this  writ  in  considering  the 
powers  of  the  judiciary,3  and  with  the  respective  claims  of 
the  President  and  of  Congress  to  exercise  the  power  of  sus- 
pension in  considering  the  functions  of  those  branches  of 
the  government.4  We  shall  not,  therefore,  take  up  those 
questions  again  at  this  point. 

§135.  Ex  Post  Facto  Laws  and  Bills  of  Attainder.  One 
of  the  guaranties  contained  in  the  body  of  the  Constitution 
provides  that,  "No  bill  of  attainder  or  ex  post  facto  law 
shall  be  passed." s  This  was  inserted  late  in  the  proceedings 
of  the  Constitutional  Convention.  Several  members  of 
the  Convention  thought  the  provision  as  to  ex  post  facto 
laws  unnecessary,  declaring  that  without  it  the  government 
would  have  no  power  to  pass  such  laws.  The  answer  was 
that  governments  did  pass  such  laws,  and  that  the  proposed 
constitutional  prohibition  would  give  the  judges  something 
to  "take  hold  of."6  This  prohibition  applies  to  the  federal 
government  only,7  but  there  is  a  similar  provision  in  the 
following  section  of  the  Constitution  which  applies  to  the 
States.  The  meaning  of  these  provisions  are  so  fully  dis- 
cussed in  dealing  with  the  constitutional  limitations  upon 
the  powers  of  the  States  that  they  will  not  be  again  con- 
sidered here.8 

§136.  Place  of  Trial.  A  further  guaranty  contained 
in  the  body  of  the  Constitution  is  that  the  trial  of  all  crimes 
"shall  be  held  in  the  States  where  the  said  crimes  shall  have 
been  committed;  but  when  not  committed  within  any 

1  Art.  I,  sec.  9,  par.  2. 

a  Farrand,  Records  of  the  Federal  Convention,  vol.  ii,  pp.  341,  438. 

3  See  sec.  44.  4  See  sees.  39  and  99. 

s  Art.  I,  sec.  9,  par.  3. 

6  Farrand,  The  Records  of  the  Federal  Convention,  vol.  ii,  pp.  375,  376. 

'Calder  v.  Bull  (1798)  3  Dallas  386,  389. 

8  See  Chap.  21. 


§  136  FEDERAL  CRIMINAL  LAW  383 

State,  the  trial  shall  be  at  such  place  or  places  as  the  Con- 
gress may  by  law  have  directed."1  This  is  supplemented 
by  the  requirement  in  the  Sixth  Amendment  that  a  criminal 
trial  shall  be  by  a  jury  "of  the  State  and  district  wherein 
the  crime  shall  have  been  committed,  which  district  shall 
have  been  previously  ascertained  by  law. ' '  These  provisions 
show  the  anxiety  of  the  States  that  persons  accused  of 
having  committed  crimes  within  their  borders  against  the 
United  States  should  be  tried  within  the  locality  where  the 
crime  was  committed.  It  leaves  the  federal  government 
free,  however,  to  determine  where  crimes  committed  in  the 
territories  or  upon  the  high  sea  shall  be  tried. 2  The  Federal 
Judicial  Code  provides  that  "the  trial  of  offenses  punishable 
with  death  shall  be  had  in  the  county  where  the  offense  was 
committed,  where  that  can  be  done  without  great  incon- 
venience."3 On  the  other  hand  it  provides  that, 

' '  When  any  offense  against  the  United  States  is  begun 
in  one  judicial  district  and  completed  in  another,  it  shall 
be  deemed  to  have  been  committed  in  either,  and  may  be 
dealt  with,  inquired  of,  tried,  determined,  and  punished  in 
either  district,  in  the  same  manner  as  if  it  had  been  actually 
and  wholly  committed  therein."4 

So  a  person  may  be  tried  and  convicted  for  a  conspiracy  in 
any  county  in  which  an  overt  act  was  done  to  effectuate  the 
conspiracy5;  misuse  of  the  mail  may  be  punished  in  the  dis- 
trict in  which  the  matter  was  mailed  or  in  that  in  which  it 
was  received6;  and  a  carrier  may  be  prosecuted  for  trans- 

1  Art.  I,  sec.  9,  par.  3. 

2  United  States  v.  Dawson  (1853)  15  Howard  467,  488;  Cook  v.  United 
States  (1891)  138  U.  S.  157;  Jones  v.  United  States  (1890)  137  U.  S. 
202.    And  see  Zoline's  Federal  Criminal  Law  and  Procedure,  chap.  5. 

3  Sec.  40.    See  United  States  v.  Fries  (1799)  Fed.  Cas.  5,  125,  in  which 
a  trial  outside  of  the  country  in  which  it  was  committed  was  upheld 
because  that  county  was  in  a  state  of  insurrection.  «  Sec.  42. 

sHyde  v.  United  States  (1912)  225  U.  S.  347. 

6  In  re  Palliser  (1890)  136  U.  S.  257.  See  also  Lamar  v.  United  States 
(1916)  240  U.  S.  60  (false  impersonation  of  an  officer  of  the  United  States 
over  the  telephone). 


384       THE  AMERICAN  CONSTITUTION     §  137 

portation  of  goods  for  less  than  the  published  rates  in  any 
district  through  which  the  goods  are  carried.  x 

§137.  Indictment.  The  Constitution  as  originally 
adopted  contained  no  provision  with  regard  to  indictment, 
but  the  Fifth  Amendment  declares  that, 

"No  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  a  presentment  or 
indictment  of  a  grand  jury,  except  in  cases  arising  in  the 
land  or  naval  forces,  or  in  the  militia,  when  in  actual 
service  in  time  of  war  or  public  danger." 

The  common  law  recognized  two  ways  of  initiating  criminal 
proceedings,  one  by  an  information  drawn  up  and  filed  by 
the  official  prosecutor,  the  other  by  presentment  or  indict- 
ment of  a  grand  jury.2  As  the  grand  jury  is  not  a  per- 
manent body,  but  drawn  periodically  from  the  people,  it 
has  always  been  regarded  as  less  subject  to  governmental 
influence  than  the  official  prosecutor.  Hence  this  provision 
in  the  bill  of  rights  was  deemed  necessary  to  the  citizens' 
protection  against  the  bureaucracy  of  government. 

Whether  criminal  conduct  falls  within  the  category  of 
the  amendment  depends  upon  the  penalty  that  may  be 
inflicted,  not  that  which  is  awarded  upon  trial.3  If  the 
crime  charged  is  punishable  with  death  it  is  a  capital  crime. 
If  the  maximum  penalty  is  punishment  which  is  infamous, 
the  offender  must  be  called  to  answer  therefore  by  a  grand 
jury's  presentment  or  indictment.  In  determining  whether 
a  punishment  is  infamous  or  not  regard  must  be  had  for  the 
public  opinion  at  the  time.  This  changes  from  age  to  age, 
and  the  courts  refuse  to  formulate  a  hard  and  fast  rule  to 
be  applied.  For  more  than  a  century,  however,  a  crime 
that  is  punishable  by  imprisonment  for  a  term  of  years  at 

1  Armour  Packing  Co.  v.  United  States  (1908)  209  U.  S.  56. 

3  For  the  difference  between  presentment  and  indictment  see  Zoline's 
Federal  Criminal  Law  and  Procedure,  sec.  133. 

3  In  re  Claasen  (1891)  140  U.  S.  200,  205;  Fitzpatrick  v.  United 
States  (1900)  178  U.  S.  304. 


§  138  FEDERAL  CRIMINAL  LAW  385 

hard  labor  has  been  considered  infamous  both  in  England 
and  America, x  and  crime  punishable  by  imprisonment  in  a 
penitentiary  have  been  held  infamous.2  A  party  cannot 
waive  his  constitutional  right  to  an  indictment. 3 

§138.  Jury  Trial.  The  Constitution  as  originally 
adopted  provided  that,  "the  trial  of  all  crimes,  except  in 
cases  of  impeachment,  shall  be  by  jury,"4  and  the  Sixth 
Amendment  also  declares  that  "in  all  criminal  prosecutions" 
there  shall  be  a  trial  "  by  an  impartial  jury  of  the  State  and 
district  wherein  the  crime  shall  have  been  committed,  which 
district  shall  have  been  previously  ascertained  by  law." 
It  will  be  observed  that  the  word  "crime"  is  used  both  in 
the  original  text  and  in  the  amendment.  This  term  had  a 
definite  technical  meaning  in  English  law,  and  is  to  be  under- 
stood in  that  sense.  It  was  employed  in  contrast  to  petty 
offenses  which  subjected  the  offender  to  criminal  punish- 
ment, but  did  not  entitle  him  to  a  jury  trial.  The  draft  of 
the  provision  as  reported  to  the  Constitutional  Convention 
by  the  Committee  of  Five  read,  "the  trial  of  all  criminal 
offenses  .  .  .  shall  be  by  jury ."  By  a  unanimous  vote  this 
was  changed  so  as  to  read,  "the  trial  of  all  crimes." s  Hence 
this  guaranty  is  not  available  to  petty  offenders,  whose 
acts  are  mala  prohibita  only,  and  punishable  by  light  fines, 6 
nor  to  persons  sued  for  penalties,7  nor  to  those  proceeded 
against  for  contempt,8  nor  to  aliens  in  summary  proceed- 
ings for  their  deportation  under  statutory  regulations 
governing  their  entrance  into  this  country  and  their  con- 
tinuance here. 9  But  the  distinction  is  not  between  felonies 
and  misdemeanors.10 

1  Ex  parte  Wilson  (1885)  114  U.  S.  417  (The  subject  is  discussed  with 
great  fulness  and  learning  in  the  opinion  of  Justice  Gray). 

2  In  re  Claasen  (1891)  140  U.  S.  200,  205  and  cases  there  cited. 

3  Thompson  v.  Utah  (1895)  170  U.  S.  343. 
*  Art.  Ill,  sec.  2,  par.  3. 

s  Schick  v.  United  States  (1904)  195  U.  S.  65,  70.  6  Ibid. 

i  Oceanic  Steam  Nav.  Co.  v.  Stranahan  (1909)  214  U.  S.  320. 
8  In  re  Debs  (1895)  158  U.  S.  564,  594. 
'Zakonaite  v.  Wolf  (1912)  226  U.  S.  272. 
*o  Callan  v.  Wilson  (1888)  127  U.  S.  540. 
25 


386       THE  AMERICAN  CONSTITUTION     §  139 

The  guaranties  of  a  jury  trial  mean  a  trial  by  a  jury  of 
twelve,  because  that  was  the  accepted  meaning  attached  to 
the  term  when  the  Constitution  and  the  first  ten  amend- 
ments were  adopted.1  For  the  same  reason  conviction 
must  be  by  a  unanimous  verdict.2  Also,  the  requirement 
that  the  trial  shall  be  by  an  "impartial  jury"  means  that 
the  right  of  challenge  for  cause  cannot  be  taken  away.3 
A  person  accused  of  crime  may  not  waive  a  jury  trial  in  the 
case  of  any  serious  offense,  where  the  penalty  would  be 
deprivation  of  life  or  liberty, 4  but  he  may  apparently  do  so 
in  case  of  petty  offenses. 5 

§139.  Speedy  and  Public  Trial.  By  force  of  the  Sixth 
Amendment  a  person  is  entitled  to  "a  speedy  and  public" 
trial  in  all  criminal  prosecutions.  By  a  speedy  trial  is 
meant  one  which  is  carried  on  with  such  reasonable  speed  as 
is  consistent  with  the  due  course  of  justice. 

"The  right  of  a  speedy  trial  is  necessarily  relative. 
It  is  consistent  with  delays  and  depends  upon  circum- 
stances. It  secures  rights  to  a  defendant.  It  does  not 
preclude  the  rights  of  public  justice."6 

In  Phillips  v.  United  States'*  it  is  said  that  a  defendant  may 
not  acquiesce  in  postponements  of  his  trial  and  then  claim 
that  his  case  should  be  dismissed  because  he  had  not  been 
given  a  speedy  trial.  It  is  his  duty  if  he  wants  a  speedy 
trial  to  ask  for  it. 
A  person  accused  of  crime  is  also  by  1;he  same  amendment 

1  Thompson  v.  Utah  (1895)  170  U.  S.  343. 
3  Maxwell  v.  Dow  (1900)  176  U.  S.  581,  586. 

3  Lewis  v.  United  States  (1892)  146  U.  S.  370. 

4  Thompson  v.  Utah  (1895)  170  U.  S.  343,  353.      As  to  presence  of 
accused  while  jury  is  drawn,  see  Hopt  v.  Utah  (1884)  no  U.  S.  574. 

sSchick  v.  United  States  (1904)  195  U.  S.  65,  71.  Justice  Harlan 
strongly  dissented.  See  a  note  in  8  Col.  L.  Rev.,  577,  discussing  the  var- 
ious views  of  the  state  courts. 

6  Beavers  v.  Haubert  (1905)  198  U.  S.  77,  87.    See  also  the  discussion 
of  this  point  in  Ex  parte  Stanley  (1868)  4  Nev.  113,  116;  United  States 
v.  Fox  (1880)  3  Mont.  512,  517. 

7  (1912)  201  Fed.  259,  262. 


§  140  FEDERAL  CRIMINAL  LAW  387 

entitled  to  a  "public  trial."  This  provision  has  not  come 
before  the  Supreme  Court  for  interpretation,  but  has  twice 
been  discussed  by  the  Circuit  Court  of  Appeals  in  different 
circuits.  Reagan  v.  United  States1  was  a  prosecution  for 
rape.  The  trial  judge  directed  that  the  courtroom  be  cleared 
of  spectators,  leaving  court  officers,  members  of  the  bar, 
witnesses  and  all  persons  connected  with  the  trial.  The 
court,  reviewing  the  state  decisions  admitted  a  diversity 
of  view,  but  held  that  the  constitutional  provision  should 
have  a  reasonable  construction,  and  that  in  such  a  case  as 
that  before  the  court  it  was  not  improper  to  limit  the  per- 
sons who  should  be  allowed  to  attend.  In  Davis  v.  United 
States2  defendants  were  on  trial  for  a  train  robbery.  When 
the  arguments  to  the  jury  were  to  be  made  the  courtroom 
was  crowded  and  the  judge  directed  that  the  room  be 
cleared  except  for  members  of  the  bar,  relatives  of  the  de- 
fendants and  reporters.  The  court  reviewing  the  cases  in 
the  state  courts  came  to  the  conclusion  that  the  defendant 
had  not  had  a  public  trial  within  the  meaning  of  the  Con- 
stitution. The  court,  however,  did  not  seem  to  disapprove 
of  Reagan  v.  United  States.  Probably  in  cases  of  rape  and 
the  like,  it  is  constitutional  to  exclude  young  persons,  and 
those  apparently  actuated  by  a  morbid  curiosity  to  hear 
the  indecent  details  of  the  crime,  as  long  as  a  reasonable 
representation  of  the  public  is  admitted.3 

§140.  Self-Incrimination.  The  Fifth  Amendment  de- 
clares that,  "No  person  .  .  .  shall  be  compelled  in  any 
criminal  case  to  be  a  witness  against  himself. ' '  The  Supreme 
Court  has  said  of  this  clause  of  the  amendment : 

"The  object  of  the  amendment  is  to  establish  in  express 
language  and  upon  a  firm  basis  the  general  principle  of 
English  and  American  jurisprudence,  that  no  one  shall  be 
compelled  to  give  testimony  which  may  expose  him  to 
prosecution  for  crime.  It  is  not  declared  that  he  may  not 

1  (1913)  202  Fed.  488. 

2  (1917)  247  Fed.  394. 

J  See  Cooley,  Constitutional  Limitations  (yth  ed.)  441. 


388       THE  AMERICAN  CONSTITUTION     §  140 

be  compelled  to  testify  to  facts  which  may  impair  his 
reputation  for  probity,  or  even  tend  to  disgrace  him,1 
but  the  line  is  drawn  at  testimony  that  may  expose  him 
to  prosecution.  If  the  testimony  relates  to  criminal  acts 
long  since  past,  and  against  the  prosecution  of  which  the 
statute  of  limitations  has  run,  or  for  which  defendant  has 
already  received  a  pardon  or  is  guarantied  an  immunity, 

the  amendment  does  not  apply."2 

0 

The  court  in  the  same  case  further  declares  that, 

"The  right  of  a  person  under  the  Fifth  Amendment  to 
refuse  to  incriminate  himself  is  purely  a  personal  privilege 
of  the  witness.  It  was  never  intended  to  permit  him  to 
plead  the  fact  that  some  third  person  might  be  in- 
criminated by  his  testimony,  even  though  he  were  the 
agent  of  such  person."3 

It,  therefore,  does  not  excuse  an  officer  of  a  corporation 
from  giving  testimony  which  may  incriminate  the  corpora- 
tion. Again  the  court  says  in  the  same  case : 

"The  question  whether  a  corporation  is  a  'person' 
within  the  meaning  of  this  amendment  really  does  not 
arise,  except  perhaps  where  a  corporation  is  called  upon 
to  answer  a  bill  of  discovery,  since  it  can  only  be  heard 
by  oral  evidence  in  the  person  of  some  one  of  its  agents  or 
employes."4 

In  Counselman  v.  Hitchcock3  the  Supreme  Court  had  pre- 
sented to  it  for  determination  the  question  whether  a  witness 
might  refuse  to  answer  a  question  on  the  ground  that  his 
testimony  might  tend  to  incriminate  him  in  view  of  a  statute 
which  provided  that 

1  If  the  evidence  is  not  material  to  the  issue  on  trial,  but  will  only 
impair  the  credibility  of  the  witness,  and  will  show  his  infamy,  it  seems 
that  he  may  fall  back  upon  his  privilege.  Brown  v.  Walker  (1896)  161 
U.  S.  591,  598. 

a  Hale  v.  Henkel  (1906)  201  U.  S.  43,  66. 

J  Ibid.  69.  4  ibid. 

4(1892)  142  U.  S.  547. 


§  HO  FEDERAL  CRIMINAL  LAW  389 

"no  pleading  of  a  party,  nor  any  discovery  or  evidence 
obtained  from  a  party  or  witness  by  means  of  a  judicial 
proceeding  in  this  or  any  foreign  country,  shall  be  given 
in  evidence,  or  in  any  manner  used  against  him  or  his 
property  or  estate,  in  any  court  of  the  United  States,  in 
any  criminal  proceeding  or  for  the  enforcement  of  any 
penalty  or  forfeiture." 

The  court  held  that  this  statute  would  not  prevent  the  use 
of  the  testimony  of  a  witness  to  search  out  other  testimony 
to  be  used  against  him,  and  that  he  might  in  effect,  there- 
fore, be  compelled  to  be  a  witness  against  himself,  notwith- 
standing the  statutory  provision.  That  being  so  it  was  held 
that  he  could  refuse  to  answer.  To  meet  the  objection  raised 
in  this  case  a  new  statute  was  framed  which  provided  that 

"no  person  shall  be  prosecuted  or  be  subjected  to  any 
penalty  or  forfeiture  for  or  on  account  of  any  transaction, 
matter,  or  thing  concerning  which  he  may  testify  or 
produce  evidence,  documentary  or  otherwise." 

In  Brown  v.  Walker*  this  statute  was  held  to  furnish  absolute 
immunity  in  the  federal  courts.  This  being  so  testimony 
given  by  a  witness  could  not  tend  to  incriminate  him,  and, 
therefore,  he  could  not  refuse  to  testify  on  the  ground  that 
he  was  being  compelled  to  be  a  witness  against  himself. 
In  Hale  v.  Henkel2  the  Supreme  Court  says : 

"The  further  suggestion  that  the  statute  offers  no 
immunity  from  prosecution  in  the  state  courts  was  also 
fully  considered  in  Brown  v.  Walker  and  held  to  be  no 
answer.  The  converse  of  this  was  also  decided  in  Jack  v. 
Kansas,  199  U.  S.  372,  namely  that  the  fact  that  an  immun- 
ity granted  to  a  witness  under  a  state  statute  would  not 
prevent  a  prosecution  of  such  witness  for  a  violation  of  a 
federal  statute,  did  not  invalidate  such  statute  under  the 
Fourteenth  Amendment.  .  .  .  The  question  has  been 
fully  considered  in  England,  and  the  conclusion  reached 

1  (1896)  161  U.  S.  591.    See  also  Hale  v.  Henkel  (1906)  201  U.  S.  43. 
a  (1906)  201  U.  S.  43,  68. 


390       THE  AMERICAN  CONSTITUTION     §  141 

by  the  courts  of  that  country  that  the  only  danger  to  be 
considered  is  one  arising  within  the  same  jurisdiction  and 
under  the  same  sovereignty."1 

A  person  may  waive  the  constitutional  immunity  against 
self-incrimination,  and  if  he  "discloses  his  criminal  connec- 
tions, he  is  not  permitted  to  stop,  but  must  go  on  and  make 
a  full  disclosure."2  It  is  for  the  trial  court  to  determine 
whether  in  view  of  all  the  circumstances  is  a  question  such 
that  the  answer  may  tend  to  incriminate  the  witness,  and  a 
direction  to  answer  will  not  be  held  by  an  appellate  tribunal 
to  have  infringed  the  constitutional  guaranty  unless  real 
danger  of  incrimination  appears  to  be  the  probable  result  of 
answering.3  But  "if  the  fact  that  the  witness  is  in  danger 
appears,  great  latitude  should  then  be  allowed  to  him  in 
judging  for  himself  of  the  effect  of  any  particular  question."4 

The  prohibition  of  the  Fifth  Amendment  for  the  protection 
of  witnesses  "  is  a  prohibition  of  the  use  of  physical  or  moral 
compulsion  to  extort  communications  from  him,  not  an 
exclusion  of  his  body  as  evidence  when  it  may  be  material."5 
Hence  the  exhibition  of -his  person  to  the  jury,  or  the  com- 
parison of  his  face  with  a  photograph,  or  the  trying  of 
clothing  on  him  are  not  violations  of  this  guaranty. 

§141.  Unreasonable  Searches  and  Seizures.  The  Fourth 
Amendment  to  the  Constitution  is  as  follows : 

"The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated,  and  no  warrant  shall 
issue  but  upon  probable  cause,  supported  by  oath  or 
affirmation,  and  particularly  describing  the  place  to  be 
searched,  and  the  person  or  things  to  be  seized." 

1  Citing  Queen  v.  Boyes  (1861)  I  B.  &  S.  31 1 ;  King  of  the  Two  Sicilies  v. 
Wilcox  (1850)  7  State  Trials  (N.  S.)  1049,  1068;  State v.  March  (1854) 
i  Jones  (N.  Car.)  526;  State  v.  Thomas  (1887)  98  N.  C.  599. 

3  Brown  v.  Walker  (1896)  161  U.  S.  591,  597. 

s  Mason  v.  United  States  (1917)  244  U.  S.  362. 

4  Foot  v.  Buchanan  (1902)  113  Fed.  156,  161;  Zoline's  Criminal  Law 
and  Procedure,  sec.  122. 

s  Holt  v.  United  States  (1910)  218  U.  S.,  245,  252. 


§  i4i  FEDERAL  CRIMINAL  LAW  391 

The  historical  background  of  this  amendment  is  very 
graphically  sketched  by  Justice  Bradley  in  Boyd  v.  United 
States1 

"This  protection  reaches  all  alike,  whether  accused  of 
crime  or  not,  and  the  duty  of  giving  to  it  force  and  effect 
is  obligatory  upon  all  entrusted  under  our  federal  system 
with  the  enforcement  of  the  laws.  The  tendency  of 
those  who  execute  the  criminal  laws  of  the  country  to 
obtain  convictions  by  means  of  unlawful  seizures  and 
enforced  confessions,  the  latter  often  obtained  after  sub- 
jecting accused  persons  to  unwarranted  practices  de- 
structive of  rights  secured  by  the  Federal  Constitution, 
should  find  no  sanction  in  the  judgments  of  the  courts 
which  are  charged  at  all  times  with  the  support  of  the 
Constitution  and  to  which  people  of  all  conditions  have  a 
right  to  appeal  for  the  maintenance  of  such  fundamental 
rights."2 

Sealed  mail  matter  may  not  be  opened  to  determine 
whether  it  contains  material  improper  for  mailing  without 
a  search  warrant. 3 

The  provision  in  the  Fourth  Amendment,  which  guaran- 
ties persons  against  "unreasonable  searches  and  seizures," 
has  been  read  with  the  provision  in  the  Fifth  Amend- 
ment against  self-incrimination  with  important  results.  In 
Boyd  v.  United  States,4  it  was  held  that  to  search  for  and 
seize  a  man's  private  papers  in  order  to  use  them  against 
him  in  criminal  proceedings  would  be  unreasonable,  and  so 
unconstitutional,  because  this  would  in  effect  be  making 
him  a  witness  against  himself.5  It  was  held  equally  un- 

1  (1886)  116  U.  S.  616. 

3  Weeks  v.  United  States  (1914)  232  U.  S.  383,  392.  Acts  of  officials 
in  violation  of  the  constitutional  guaranty  against  unreasonable 
searches  and  seizures  cannot  be  validated  by  legislation.  Griffin  v. 
Wilcox  (1863)  21  Ind.  370. 

3  Ex  parte  Jackson  (1877)  96  U.  S.  727.        4  (1886)  116  U.  S.  616. 

5  But  the  constitutional  provision  does  not  prevent  the  search  of  a 
person  legally  arrested  to  discover  and  seize  the  fruits  or  evidence  of 
crime.  Weeks  v.  United  States  (1914)  232  U.  S.  383,  392.  Nor  does  it 


392       THE  AMERICAN  CONSTITUTION     §  141 

constitutional  to  compel  him  to  produce  such  papers  by 
subpoena  duces  tecum.  This  is  not  true,  however,  of  a  cor- 
poration. A  corporation  is  a  creature  of  the  State,  and  the 
State  has  more  freedom  in  investigating  its  conduct  than 
that  of  a  natural  person,  and  it  is,  therefore,  reasonable  to 
compel  the  production  of  papers  of  a  corporation,  though 
they  may  tend  to  incriminate  it.1  Furthermore,  a  person 
may  not  refuse  to  produce  corporate  papers  or  books  under 
his  charge  or  in  his  possession  on  the  ground  that  they  will 
tend  to  incriminate  him,  since  the  doctrine  of  the  Boyd  case 
applies  only  to  a  person's  private  papers.2 

In  Adams  v.  New  York3  it  appeared  that  in  executing  a 
search  warrant  for  gambling  devices  the  officer  found  papers 
of  the  defendant  which  were  introduced  in  evidence  for  the 
purpose  of  connecting  him  with  the  illegal  gambling  trans- 
actions. The  Supreme  Court  held  that  to  admit  such  evi- 
dence was  not  contrary  to  the  Fourth  or  Fifth  Amendments. 
The  court  emphasized  the  fact  that  the  papers  were  procured 
by  officers  executing  a  legal  search  warrant  for  other  prop- 
erty, but  it  seemed  to  actually  base  its  decision  upon  the 
broad  doctrine  laid  down  by  Greenleaf,4  and  supported  by 
decisions  reviewed  by  the  court,  as  follows : 

"  It  may  be  mentioned  in  this  place  that  though  papers 
and  other  subjects  of  evidence  may  have  been  illegally 
taken  from  the  possession  of  the  party  against  whom  they 
are  offered  or  otherwise  unlawfully  obtained,  this  is  no 
valid  objection  to  their  admissibility  if  they  are  pertinent 

prevent  the  arrest  without  a  warrant  of  one  engaged  in  the  commission  of 
a  crime,  nor,  under  certain  circumstances,  of  one  who  is  suspected  of 
having  committed  a  felony.  See  Bishop's  New  Criminal  Procedure  (26. 
ed.)  sees.  164  to  186. 

1  Hale  v.  Henkel  (1906)  201  U.  S.  43.     But  it  was  held  in  this  case 
that  an  order  for  the  production  of  papers  may  be  so  sweeping  and 
unreasonable  as  to  be  unconstitutional. 

2  Wilson  v.  United  States  (1911)  221  U.  S.  361;  Wheeler  v.  United 
States  (1913)  226  U.  S.  478;  Grant  v.  United  States  (1913)  227  U.  S. 

74- 

3  (1904)  192  U.  S.  585. 

4  Vol.  i,  sec. 


FEDERAL  CRIMINAL  LAW  393 

to  the  issue.  The  court  will  not  take  notice  how  they  were 
obtained,  whether  lawfully  or  unlawfully,  nor  will  it  form 
an  issue  to  determine  that  question." 

In  Weeks  v.  United  States1  it  appeared  that  the  defendant's 
house  had  been  entered  without  any  warrant  or  legal  author- 
ity by  a  United  States  marshal,  and  property  and  papers 
taken  therefrom.  The  defendant  made  application  to  the 
court  for  the  return  of  the  things  taken.  The  court  ordered 
the  return  of  certain  of  the  property,  but  refused  to  order 
the  return  of  papers  which  the  government  desired  to  use  as 
evidence  against  the  accused.  Again  upon  the  trial  the 
defendant  asked  for  the  return  of  the  papers,  and  when  they 
were  introduced  in  evidence  he  objected  upon  the  ground 
that  their  introduction  was  in  violation  of  the  Fourth  and 
Fifth  Amendments.  The  Supreme  Court  held  that  these 
constitutional  provisions  for  his  protection  had  been  vio- 
lated. Although  the  court  did  not  overrule  the  Adams  case 
it  seemed  to  look  upon  it  with  very  little  favor.  The  court, 
distinguished  that  case  upon  the  grounds  that  the  papers 
there  in  question  were  obtained  by  one  who  was  executing  a 
valid  search  warrant  for  other  property,  and  that  no  applica- 
tion had  there  been  made  for  the  return  of  the  papers,  the 
defendant  merely  contenting  himself  with  a  collateral  attack 
upon  the  evidence  at  the  trial. 

In  Burdeau  v.  McDowell2  a  petition  was  presented  to  a 
District  Court  for  an  order  on  an  Assistant  to  the  Attorney- 
General  for  the  return  of  certain  papers  which  he  was  about 
to  present  to  a  grand  jury  as  evidence  of  the  petitioner's 
guilt  of  fraudulent  use  of  the  mails.  It  appeared  that  the 
papers  were  stolen  from  the  petitioner  and  turned  over  to 
the  officer  in  question.  The  district  judge  granted  the  peti- 
tioner's prayer,  but  upon  appeal  to  the  Supreme  Court  the 
order  was  reversed.  The  court  held  that  no  constitutional 
right  of  the  petitioner  was  involved,  and  that  there  was  no 

1  (1914)  232  U.  S.  383.  See  further  Gould  v.  United  States  (1921) 
255  U.  S.  298. 

3  (1921)  41  Sup.  Ct.  Rep.  574. 


394       THE  AMERICAN  CONSTITUTION     §  141 

reason  why  a  public  officer  into  whose  hands  incriminating 
papers  had  come  should  not  use  them,  simply  because  some 
other  person  may  have  wrongfully  taken  them.  Justice 
Brandeis  and  Justice  Holmes  dissented.  They  admit  that 
there  may  not  be  any  constitutional  provision  which  re- 
quires the  return  of  such  papers,  but  they  declare  that  if  the 
papers  were  still  in  the  hands  of  the  thief  they  would  be 
restored  to  the  owner,  and  that  being  in  the  hands  of  a  law 
officer  their  return  may  be  ordered,  and  that  this  should  be 
done,  for  "respect  for  law  will  not  be  advanced  by  resort, 
in  its  enforcement,  to  means  which  shock  the  common  man's 
sense  of  decency  and  fair  play." 

If  a  warrant  is  sought  for  the  seizure  or  search  of  person 
or  property  the  application  must  be  based  on  a  sworn  state- 
ment of  facts,  not  surmises  or  beliefs.1 

"No  search  warrant  shall  be  issued  unless  the  judge 
has  first  been  furnished  with  facts  under  oath — not  sus- 
picions, beliefs,  or  surmises — but  -facts  which,  when  the 
law  is  properly  applied  to  them,  tend  to  establish  the 
necessary  legal  conclusion,  or  facts  which,  when  the  law 
is  properly  applied  to  them,  tend  to  establish  probable 
cause  for  believing  that  the  legal  conclusion  is  right. 
The  inviolability  of  the  accused's  home  is  to  be  deter- 
mined by  the  facts,  not  by  rumor,  suspicion,  or  guess- 
work. If  the  facts  afford  the  legal  basis  for  the  search 
warrant,  the  accused  must  take  the  consequences.  But 
equally  there  must  be  consequences  for  the  accuser  to 
face.  If  the  sworn  accusation  is  based  on  fiction,  the 
accuser  must  take  the  chance  of  punishment  for  perjury. 
Hence  the  necessity  of  a  sworn  statement  of  facts,  because 
one  cannot  be  convicted  of  perjury  for  having  a  belief 
though  the  belief  be  utterly  unfounded  in  fact  and  law. 
The  finding  of  the  legal  conclusion  or  of  probable  cause 
from  the  exhibited  facts  is  a  judicial  function,  and  it 
cannot  be  delegated  by  the  judge  to  the  accuser.  No 

1  See  the  Act  of  June  15,  1917,  40  Stat.  228,  with  regard  to  search 
warrants. 


142  §  FEDERAL  CRIMINAL  LAW  395 

search  warrant  should  be  broader  than  the  justifying  basis 
of  facts."1 

"But  the  averment  of  facts  need  not  be  by  an 
eye  witness.  Allegations  on  information  can  be  stated,  if 
the  facts  so  referred  to  and  the  source  of  the  information 
are  stated."2 

The  affidavit  and  warrant  must  describe  ''with  reasonable 
particularity  the  thing  for  which  the  search  was  to  be 
made."3 

§142.  Double  Jeopardy.  The  constitutional  guaranty 
against  double  jeopardy  is  in  the  following  terms:  "Nor 
shall  any  person  be  subject  for  the  same  offense  to  be  twice 
put  in  jeopardy  of  life  or  limb."4  Federal  authority  sup- 
ports the  rule  that  a  person  may  plead  former  jeopardy  if 
he  has  previously  been  put  on  trial  in  the  same  jurisdiction 
for  the  same  offense,  before  a  court  of  competent  jurisdic- 
tion, and  a  jury  has  been  empaneled  &nd  sworn,  even 
though  the  jury  be  dismissed  before  verdict,  if  this  was  done 
without  his  consent  and  without  necessity. 

A  trial  and  acquittal  by  court-martial  is  a  bar  to  another 
prosecution  in  a  federal  court,  since  they  are  both  courts  of 
the  same  jurisdiction.5  But  the  fact  that  one  has  been 
indicted  and  tried  in  a  state  court  for  certain  acts,  does  not 
prevent  his  being  tried  in  a  federal  court  for  the  same  acts 
if  they  also  constitute  a  crime  against  the  United  States,  for 
he  is,  under  such  circumstances,  being  tried  in  different 
jurisdiction  for  offenses  against  different  sovereignties.6 
Even  in  the  same  jurisdiction  a  single  transaction  may 
constitute  two  distinct  offenses.  For  example,  a  drunken 
person  using  rude  and  boisterous  language  insulted  a  police 

1  Veeder  v.  United  States  (1918)  252  Fed.  414,  418.    See  also  In  re 
Tri-State  Coal  &  Coke  Co.  (1918)  253  Fed.  605. 

2  In  re  Rosenwasser  Bros.  (1918)  254  Fed.  171,  173. 

3  Weeks  v.  United  States  (1914)  232  U.  S.  383,  393. 
*  Fifth  Amendment. 

sGrafton  v.  United  States  (1907)  206  U.  S.  333. 
6  Fox  v.  Ohio  (1847)  5  Howard  410;  United  States  v.  Marigold  (1850) 
9  Howard  560;  Moore  v.  Illinois  (1852)  14  Howard  13. 


396       THE  AMERICAN  CONSTITUTION     §  142 

officer  on  the  street.  He  thereby  violated  an  ordinance 
against  drunkenness  and  rude  and  boisterous  conduct  in  a 
public  place,  and  another  prohibiting  insults  to  public 
officials.  Conviction  under  one  ordinance  was  held  to  be 
no  bar  to  prosecution  under  the  other.1  The  test  is,  will 
the  same  evidence  sustain  a  conviction  under  each  charge. 
In  the  case  last  cited  no  evidence  of  insult  to  an  officer  was 
needed  to  prove  a  breach  of  the  first  ordinance,  and  no  proof 
that  the  misconduct  occurred  in  a  public  place  was  required 
to  establish  a  breach  of  the  second  ordinance.  On  the  other 
hand,  if  the  same  set  of  facts  will  support  a  conviction  under 
either  of  two  statutes,  a  conviction  or  acquittal  under  one 
will  be  a  bar  to  prosecution  under  the  other.2  So  it  seems 
that  if  the  acquittal  on  one  indictment  will  show  that  the 
defendant  could  not  have  been  guilty  of  another  crime 
charged  in  a  later  indictment,  he  may  plead  double  jeopardy 
to  the  second,  as  where  he  has  been  acquitted  of  murder  and 
is  charged  with  the  manslaughter  of  the  same  person,  or 
vice  versa.3 

Where  the  court,  before  which  a  previous  trial  was  had, 
was  without  jurisdiction,  the  earlier  proceedings  are  void, 
and  are,  therefore,  no  bar  to  a  subsequent  indictment  for 
the  same  offense.4 

Although  the  general  rule  is  that  when  a  jury  has  been 
empaneled  and  sworn  the  defendant  is  in  jeopardy,  and 
cannot  be  again  tried  for  the  same  offense,  this  was  early 
qualified  by  the  Supreme  Court,  as  follows : 

1  Gaviers  v.  United  States  (1911)  220  U.  S.  338.  For  further  examples 
see  Zolme's  Federal  Criminal  Law  and  Procedure,  sec.  238. 

3  Wemyss  v.  Hopkins  (1875)  L.  R.  10  Q.  B.  378,  approved  in  Kepner 
v.  United  States  (1904)  195  U.  S.  100,  126  to  128. 

3  Grafton  v.  United  States  (1907)  206  U.  S.  333,  350.    See  also  United 
States  v.  Negro  John  (1833)  4  Cranch  Cir.  Ct.  336;   ex  parte  Nielson 
(1889)  131  U.  S.  176.    But  in  Hopkins  v.  United  States  (1894)  4  App. 
Cas.  (D.  C.)  430,  it  was  held  that  a  former  conviction  of  assault  and 
battery  is  no  bar  to  a  later  indictment  for  murder,  the  victim  having 
subsequently  died.      The  same  was  held  in  Diaz  v.  United  States  (1912) 
223  U.  S.  442. 

4  Kepner  v.  United  States  (1904)  195  U.  S.  100. 


§  H2  FEDERAL  CRIMINAL  LAW  397 

"We  think  that  in  all  cases  of  this  nature  the  law  has 
invested  the  courts  of  justice  with  the  authority  to  dis- 
charge a  jury  from  giving  any  verdict,  whenever  in  their 
opinion,  taking  all  the  circumstances  into  consideration, 
there  is  manifest  necessity  for  that  act,  or  the  ends  of 
public  justice  would  otherwise  be  defeated.  They  are  to 
exercise  a  sound  discretion  on  the  subject;  and  it  is  im- 
possible to  define  all  the  circumstances  which  will  render 
it  proper  to  interfere."1 

In  the  case  quoted  from,  the  jury  was  dismissed  because  it 
could  not  agree.2  The  doctrine  has  also  been  applied  when 
the  bias  of  a  juror  has  been  discovered  after  the  commence- 
ment of  the  trial, 3  when  it  has  been  discovered  that  a  juror 
is  disqualified  because  he  was  a  member  of  the  grand  jury 
which  found  the  indictment,4  when  there  were  procedural 
irregularities  in  the  matter  of  the  defendant's  pleadings, s  and 
when  the  indictment  was  defective. 6 

"In  England  an  aquittal  upon  an  indictment  so  defec- 
tive that,  if  it  had  been  objected  to  at  the  trial,  it  would 
not  have  supported  any  conviction  or  sentence,  has 
generally  been  considered  as  insufficient  to  support  a  plea 
of  former  acquittal.  .  .  .  And  the  general  tendency  of 
opinion  in  this  country  has  been  to  the  same  effect."7 

The  Supreme  Court  has,  however,  disapproved  of  fthis  view, 
saying: 

"After  the  full  consideration  which  the  importance  of 
the  question  demands,  that  doctrine  appears  to  us  to  be 
unsatisfactoryjn  the  grounds  upon  which  it  proceeds,  as 
well  as  unjust  in  its  operation  upon  those  accused  of 

1  United  States  v.  Perez  (1824)  9  Wheaton  579. 
3  See  also  Logan  v.  United  States  (1892)  144  U.  S.  263,  297. 
3  Simmons  v.  United  States  (1891)  142  U.  S.  148. 
*  Thompson  v.  United  States  (1894)  155  V.  S.  271. 
sLovato  v.  New  Mexico  (1916)  242  U.  S.  199. 

6  Simpson  v.  United  States  (1916)  229  Fed.  940;  certiorari  denied,  241 
U.  S.  668. 

1  United  States  v.  Ball  (1896)  163  U.  S.  662,  666. 


398       THE  AMERICAN  CONSTITUTION     §  142 

crime;  and  the  question  being  now  for  the  first  time 
presented  to  this  court,  we  are  unable  to  resist  the  con- 
clusion that  a  general  verdict  of  acquittal  upon  the  issue 
of  not  guilty  to  an  indictment  undertaking  to  charge 
murder  and  not  objected  to  before  the  verdict  as  insuffi- 
cient in  that  respect,  is  a  bar  to  a  second  indictment  for 
the  same  killing. J>1 

In  United  States  v.  Sanges 2  it  was  held  that  a  writ  of  error  did 
not  lie  in  favor  of  the  United  States  in  a  criminal  case.  In 
Kepner  v.  United  States3  the  question  was  whether  Congress 
could  constitutionally  provide  for  writ  of  error  on  behalf  of 
the  government  in  criminal  cases,  with  a  resulting  new  trial 
of  the  accused,  although  on  the  first  trial  he  had  been  ac- 
quitted. The  majority  of  the  court  held  that  this  could  not 
constitutionally  be  done — that  "the  protection  is  not, 
as  the  court  below  held,  against  the  peril  of  second  punish- 
ment, but  against  being  again  tried  for  the  same  offense."4 
Three  justices  dissented  on  the  ground  that  "a  man  cannot 
be  said  to  be  more  than  once  in  jeopardy  in  the  same  cause, 
however  often  he  may  be  tried."5  One  justice  dissented  on 
the  ground  that  when  the  guaranty  against  double  jeopardy 
was  extended  by  Congress  to  the  Philippines  where  the 
alleged  crime  occurred,  it  was  intended  to  operate  in  the 
sense  in  which  it  had  previously  operated  there,  namely, 
that  "jeopardy  did  not  terminate,  if  appeal  were  taken  to 
the  audiencia  or  Supreme  Court,  until  that  body  had  acted 
upon  the  case."6 

Where  upon  conviction  the  defendant  procures  the  judg- 
ment against  him  to  be  set  aside,  "he  may  be  tried  anew 
upon  the  same  indictment,  or  upon  another  indictment,  for 
the  same  offense  of  which  he  had  been  convicted."7  Such 
action  on  his  part  constitutes  a  waiver  of  his  immunity 

1  United  States  v.  Ball  (1896)  163  U.  S.  662  669. 

3  (1892)  144  U.  S.  310. 

3  (1904)  195  U.  S.  ioo. 

« Ibid.,  130.  slbid.,  134. 

*Ibid.t  137. 

i  United  States  v.  Ball  (1896)  163  U.  S.  662,  672. 


§  H3  FEDERAL  CRIMINAL  LAW  399 

from  a  second  jeopardy.  In  Trono  v.  United  States1  the 
Supreme  Court  went  a  step  further.  The  defendants  were 
indicted  for  murder  in  the  first  degree,  and  were  found 
guilty  of  assault.  They  appealed,  the  judgment  was  re- 
versed, and  they  were  convicted  of  murder  in  the  second 
degree.  Upon  writ  of  error  to  the  Supreme  Court  of  the 
United  States  it  was  claimed  that,  the  defendant  having 
been  acquitted  of  the  charge  of  murder  on  the  first  trial,  he 
was  put  a  second  time  in  jeopardy  when  he  was  again  tried 
for  that  crime,  and  that  by  getting  the  first  judgment  set 
aside  he  waived  only  his  immunity  from  a  second  trial  for 
the  offense  of  which  he  was  previously  convicted.  Though 
four  justices  dissented,2  the  majority  of  the  court  were  not 
convinced  by  the  appellant's  argument,  saying: 

"We  do  not  agree  to  the  view  that  the  accused  has  the 
right  to  limit  his  waiver  as  to  jeopardy,  when  he  appeals 
from  a  judgment  against  him.  As  the  judgment  stands 
before  he  appeals,  it  is  a  complete  bar  to  any  further 
prosecution  for  the  offense  set  forth  in  the  indictment,  or 
of  any  lesser  degree  thereof.  No  power  can  wrest  from  him 
the  right  to  so  use  that  judgment,  but  if  he  chooses  to 
appeal  from  it  and  to  ask  for  its  reversal  he  thereby  waives, 
if  successful,  his  right  to  avail  himself  of  the  former  ac- 
quittal of  the  greater  offense,  contained  in  the  judgment 
which  he  has  himself  procured  to  be  reversed."3 

§143.  Counsel  and  Compulsory  Process  to  Obtain 
Witnesses.  The  Sixth  Amendment  provides  that,  "In  all 
criminal  prosecutions  the  accused  shall  enjoy  the  right  .  .  . 
to  have  compulsory  process  for  obtaining  witnesses  in  his 
favor,  and  to  have  the  assistance  of  counsel  for  his  defense." 
The  common  law  did  not  allow  the  person  accused  of  felony 
to  fortify  his  defense  with  witnesses.  Gradually,  however, 
he  was  allowed  to  call  witnesses,  but  not  to  testify  under 
oath,  until  finally  in  1702  it  was  provided  that  in  all  cases  of 

1  (1905)  i99  U.  8.521. 

3  Fuller,  Harlan,  McKenna,  and  White. 

J  Trono  v.  United  States  (1905)  199  U.  S.  521,  533. 


400       THE  AMERICAN  CONSTITUTION     §  143 

treason  and  felony  both  witnesses  for  and  against  the 
accused  should  be  examined  upon  oath.1  Justice  Brown  in 
H olden  v.  Hardy2  said: 

"Even  before  the  adoption  of  the  Constitution,  much 
had  been  done  toward  mitigating  the  severity  of  the 
common  law,  particularly  in  the  administration  of  its 
criminal  branch.  .  .  .  The  earlier  practice  of  the  com- 
mon law,  which  denied  the  benefit  of  witnesses  to  a  person 
accused  of  felony,  had  been  abolished  by  statute,  though 
so  far  as  it  deprived  him  of  the  assistance  of  counsel  and 
compulsory  process  for  the  attendance  of  his  witnesses, 
it  had  not  been  changed  in  England.  But  to  the  credit  of 
her  American  colonies,  let  it  be  said  that  so  oppressive  a 
doctrine  had  never  obtained  a  foothold  there/' 

It  was  early  held  that  process  would  issue  for  the  defendant 
to  a  judge, 3  or  a  member  of  Congress, 4  or  to  a  member  of  the 
Cabinet. s  But  such  process  does  not  extend  to  ambassadors 
who  by  international  law,  or  to  consuls  who  by  treaty  are 
exempt  from  the  jurisdiction  of  the  courts. 6 

A  person  charged  with  a  felony  was  not  by  the  common 
law  given  the  right  to  counsel,  unless  some  point  of  law  arose 
which  needed  to  be  debated,  although  the  judges  did 
gradually  feel  the  injustice  in  this  situation  and  were  liberal 
in  allowing  a  prisoner's  counsel  to  instruct  him  what  ques- 
tions to  ask,  or  even  to  ask  questions  for  him  with  regard  to 
matters  of  fact.  In  1695  and  1746  it  was  provided  that 
persons  accused  of  treason  should  have  counsel,  and  in  1820 
and  1 830  similar  provisions  were  made  for  the  protection  of 
those  accused  of  felonies.7  There  seems  to  be  no  federal 
case  in  which  the  right  of  one  accused  of  crime  to  counsel 
has  been  denied  or  abridged. 

1  4  Black.  Com.  359  and  360. 

3  (1898)  169  U.  S.  366,  386. 

3  United  States  r.  Caldwell  (1795)  Fed.  Cas.  14,  708. 

"  United  States  v.  Cooper  (1800)  4  Dallas  341. 

s  United  States  v.  Smith  (1806)  Fed.  Cas.  16,  342. 

6  In  re  Dillon  (1854)  Fed.  Cas.  3,  914. 

7  4  Black.  Com.  355  and  356. 


§§  144,  H5  FEDERAL  CRIMINAL  LAW  401 

§144.  Confrontation  with  Witnesses.  The  Sixth  Amend- 
ment further  provides  that,  "In  all  criminal  prosecutions 
the  accused  shall  enjoy  the  right  ...  to  be  confronted 
with  the  witnesses  against  him. ' '  In  Kirby  v.  United  States l 
on  a  trial  of  one  person  for  receiving  stolen  goods  the  judgment 
against  others  for  stealing  the  goods  in  question  was  admitted, 
as  directed  by  statute,  as  conclusive  evidence  that  the  goods 
had  been  stolen.  It  was  held  that  this  was  contrary  to  the 
constitutional  guaranty  above  quoted.  The  constitutional 
provision  does  not,  however,  prevent  the  admission  of 
dying  declarations,2  nor  the  reading,  upon  a  new  trial, 
of  the  testimony  of  a  witness  at  the  former  trial,  who 
was  then  subject  to  cross-examination  by  the  defendant, 
but  who  has  since  died,3  or  who  on  the  second  trial  ab- 
sents himself  by  the  defendant's  procurement.4  The  right 
of  confrontation  is  one  which  may  be  waived  by  the 
defendant.5 

§145.  Excessive  Bail  and  Fines,  and  Cruel  and  Unusual 
Punishments.  The  Eighth  Amendment  declares  that, 
"Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted." 
These  provisions  are  taken  from  the  English  Bill  of  Rights 
of  1688.  As  the  restrictions  in  that  document  are  directed 
against  the  executive  and  judiciary  and  not  against  Parlia- 
ment, doubt  has  been  expressed  whether  this  amendment  is 
not  equally  limited.  The  courts  of  some  of  the  States  have 
thought  so,  but  the  Supreme  Court  has  construed  the  limita- 
tions as  extending  to  the  legislative  branch  of  government. 
Moreover  it  has  declared  that  the  language,  though  copied 
from  the  English  Bill  of  Rights,  is  to  be  deemed  progressive 
in  its  application,  and  acquires  a  wider  meaning  than  it  had 
in  1688  or  1789,  as  public  opinion  becomes  more  humane  and 
enlightened. 

'(1899)  174  U.  8.47. 

3  Kirby  v.  United  States  (1899)  174  U.  S.  47,  61. 
*  Mattox  v.  United  States  (1895)  156  U.  S.  237. 
<  Reynolds  v.  United  States  (1878)  98  U.  S.  145. 
s  Diaz  v.  United  States  (1912)  223  U.  S.  442. 
26 


402       THE  AMERICAN  CONSTITUTION     §  145 

Bail  is  for  the  purpose  of  assuring  the  person's  attendance 
at  a  future  time,  and  it  would  seem  that  its  reasonableness 
should  be  determined  by  consideration  of  whether  in  a 
particular  case  it  is  adequate  to  that  purpose.  In  the 
interesting  case  of  United  States  v.  Lawrence,1  in  which  it 
appeared  that  the  defendant  had  shot  at  and  tried  to  kill 
President  Jackson,  the  judge  in  fixing  bail  declared  that  in 
the  exercise  of  discretion  as  to  the  amount  of  bail  which 
should  be  required,  a  judge  should  consider  the  ability  of 
the  prisoner  to  give  bail  as  well  as  the  atrocity  of  the 
offense. 

Death  is  not  a  cruel  and  unusual  punishment,  whether  it 
be  by  hanging,  shooting,  or  beheading, 2  or  by  electrocution, 3 
but  the  Constitution  forbids  torture  or  lingering  death.4 
A  long  term  of  imprisonment  for  habitual  criminals  does 
not  come  within  the  inhibition  of  the  Constitution. s 

This  constitutional  provision  received  its  fullest  considera- 
tion by  the  Supreme  Court  in  Weems  v.  United  States. 6  Under 
statutory  provisions  in  force  in  the  Philippines,  for  two  small 
falsifications  of  the  public  records  by  a  disbursing  officer  he 
was  sentenced  to  fifteen  years  imprisonment  at  hard  and 
"painful"  labor,  to  receive  no  outside  assistance,  to  carry 
a  chain  at  wrist  and  ankle,  to  be  deprived  of  all  civil  rights 
while  in  prison,  to  be  perpetually  disqualified  politically,  to 
be  perpetually  under  surveillance  of  public  authorities,  and 
to  pay  a  fine  of  four  thousand  pesetas.  The  court  came  to 
the  conclusion  that  this  was  cruel  and  unusual  punishment 
within  the  meaning  of  the  Constitution — that  that  instru- 
ment forbids  punishments  or  fines  greatly  disproportionate 
to  the  offense.  Justice  White  and  Justice  Holmes  dissented, 
holding  that  the  Constitution  only  prevents  Congress  from 
authorizing  inhuman  methods  for  causing  bodily  torture,  or 

1  (i835)  4  Cranch  Cir.  Ct.  514. 

a  Wikerson  v.  Utah  (1878)  99  U.  S.  130. 

3  In  re  Kemmler  (1890)  136  U.  S.  436, 447. 

4  See  the  discussion  in  the  last  two  cases  cited. 

s  McDonald  v.  Massachusetts  (1901)  180  U.  S.  311,  313. 
« (1910)  217  U.  S.  349. 


§  i45  FEDERAL  CRIMINAL  LAW  403 

the  courts  from  exercising  a  discretion  as  to  punishment 
vested  in  them  in  an  unusual  manner  or  to  an  unusual 
degree,  or  Congress  from  vesting  the  judiciary  with  an  illegal 
discretion  as  to  the  kind  or  degree  of  punishment  to  be 
inflicted. 


CHAPTER  XVI 

JURY  TRIAL  IN   CIVIL   SUITS 

§146.  The  Right  to  a  Jury  Trial.  That  the  Seventh 
Amendment  to  the  Constitution,  guarantying  that,  "In 
suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be 
preserved, "  was  essential  to  personal  security,  or  has  oper- 
ated beneficially  is  open  to  doubt.  It  covers  but  a  narrow 
field  of  litigation  affecting  private  rights.  Actions  in  equity 
as  well  as  those  in  admiralty  and  of  a  maritime  nature  are  not 
within  its  scope. r  Nor  are  suits  which  the  United  States  per- 
mits to  be  brought  against  it  in  law  courts.  These  latter  were 
not  known  to  the  common  law,  but  have  their  origin  in 
federal  statutes. a  The  Amendment  applies  only  to  actions 
in  federal  courts,  and  does  not  apply  to  actions  in  state 
courts  based  upon  federal  legislation.3  The  Amendment 
prevents  change  by  federal  statute  in  the  jury  system  as  it 
stood  when  the  Amendment  was  adopted.  A  body  of  twelve 
jurors  whose  verdict  must  be  unanimous,  presided  over  by  a 
judge  empowered  to  instruct  them  on  the  law  and  advise 
them  on  the  facts,  cannot  be  superseded4. 

This  right  to  a  jury  trial  in  civil  cases  may  be  waived. 
There  seems  to  have  been  no  serious  doubt  on  this  subject. s 

§147.  Reexamination  of  Facts  Found  by  a  Jury.  The 
Seventh  Amendment  further  provides  that,  "no  fact  tried 

'  Parsons  v.  Bedford  (1830)  3  Peters  433,  446;  Luria  v.  United  States 
(1913)  231  U.  S.  9,  27. 

2  McElrath  v.  United  States  (1880)  102  U.  S.  426. 

3  Minnesota  &  St.  L.  R.  R.  v.  Bombalis  (1916)  241  U.  S.  21 1. 

4  Capital  Traction  Co.  v.  Hof  (1899)  174  U.  S.  i. 

s  Parsons  v.  Armor  (1830)  3  Peters  413,  425;  Supervisors  of  Wayne 
County  v.  Kennicott  (1880)  103  U.  S.  554. 

404 


§  147        JURY  TRIAL  IN  CIVIL  SUITS  405 

by  a  jury  shall  be  otherwise  reexamined  in  any  court  of  the 
United  States,  than  according  to  the  rules  of  the  common 
law."  At  common  law  the  verdict  of  a  jury  in  a  civil  case 
could  be  set  aside  by  the  trial  judge,  if  in  his  opinion  it  was 
against  the  law  or  the  evidence.  It  could  be  set  aside  also 
by  the  proper  appellate  tribunal.  In  these  ways  an  issue 
of  fact  tried  by  a  jury  could  be  reexamined,  and  such  meth- 
ods are  secured  against  legislative  interference  by  the  clause 
of  the  Seventh  Amendment  just  quoted.  This  rule  applies 
to  cases  tried  in  state  courts,  which  are  re  viewable  by  federal 
tribunals.  The  meaning  of  the  constitutional  provision  is 
stated  as  follows  by  the  Supreme  Court1 : 

"By  virtue  of  the  Seventh  Amendment  .  .  .  when  a 
trial  by  jury  has  been  had  in  an  action  at  law,  in  a  court 
either  of  the  United  States  or  of  a  State,  the  facts  there 
tried  and  decided  cannot  be  reexamined  in  any  court  of 
the  United  States,  otherwise  than  according  to  the  rules 
of  the  common  law  of  England;  that  by  the  rules  of  that 
law  no  other  mode  of  reexamination  is  allowed  than  upon 
a  new  trial,  either  granted  by  the  court  in  which  the  first 
trial  was  had  or  to  which  the  record  was  returnable,  or 
ordered  by  an  appellate  court  for  error  in  law ;  and  there- 
fore, that,  unless  a  new  trial  has  been  granted  in  one  of 
those  two  ways  facts  once  tried  by  a  jury  cannot  be  tried 
anew,  by  a  jury  or  otherwise,  in  any  court  of  the  United 
States." 
1  Capital  Traction  Co.  v.  Hof  (1899)  174  U.  S.  I,  13. 


CHAPTER  XVII 

DUE  PROCESS  OF  LAW  AND  THE  FIFTH  AMENDMENT:  EMINENT 

DOMAIN 

§148.  Meaning  of  Due  Process  in  the  Fifth  Amendment. 
The  Fifth  Amendment,  among  other  provisions,  declares 
that  no  person  shall  be  "deprived  of  life,  liberty,  or  prop- 
erty without  due  process  of  law."  This  limitation,  like  the 
others  in  the  first  eight  amendments,  is  directed  only  against 
the  federal  government.  It  was  put  into  the  Constitution 
in  1791,  but  did  not  come  before  the  Supreme  Court  until 
I855.1  In  1868  the  Fourteenth  Amendment  was  adopted, 
which  provides  that  no  State  shall  ' '  deprive  any  person  of 
life,  liberty,  or  property  without  due  process  of  law."  Al- 
most at  once  appeals  and  writs  of  error  began  to  be  taken  to 
the  Supreme  Court  based  upon  the  due  process  clause  of  the 
Fourteenth  Amendment,  and  this  clause  has  been  before 
that  court  much  more  frequently  than  the  similar  provision 
in  the  Fifth  Amendment.  The  States  not  being  sovereign- 
ties of  limited  powers,  as  is  the  case  of  the  national  govern- 
ment, the  limitation  put  upon  them  by  the  requirement  of 
due  process  has  called  for  more  constant  interpretation  in 
connection  with  their  varied  activities.  It  has  been  thought 
best,  therefore,  to  deal  most  fully  with  due  process  in  con- 
nection with  the  States,2  and  not  to  repeat  the  discussion 
in  this  chapter  where  the  same  rules  apply  under  both 
clauses. 

In  Hurtado  v.  California*  the  Supreme  Court  said: 

1  Murray  v.  Hoboken  Land  and  Improvement  Co.  (1855)  18  Howard 
272. 

a  See  chaps.  28  to  32. 
3(1884)  noU.  S.  516,  525. 

406 


§  148    DUE  PROCESS :  EMINENT  DOMAIN     407 

"Due  process  of  law  in  the  latter  [the  Fifth  Amend- 
ment] refers  to  that  law  of  the  land  which  derives  its 
authority  from  the  legislative  powers  conferred  upon 
Congress  by  the  Constitution  of  the  United  States,  exer- 
cised within  the  limits  therein  prescribed,  and  interpreted 
according  to  the  principles  of  the  common  law.  In  the 
Fourteenth  Amendment,  by  parity  of  reason,  it  refers  to 
that  law  of  the  land  in  each  State,  which  derives  its 
authority  from  the  inherent  and  reserved  powers  of  the 
States  exerted  within  the  limits^of  those  fundamental 
principles  of  liberty  and  justice  which  lie  at  the  base  of 
all  our  civil  and  political  institutions.  ..." 

It  seems,  then,  in  the  first  place,  that  the  due  process  clause 
of  the  Fifth  Amendment  is  in  a  sense  supplementary  to  the 
other  specific  limitations  placed  upon  the  federal  action  by 
the  Constitution,  and  that  federal  legislation,  affecting  life, 
liberty,  or  property,  which  is  outside  of  the  field  of  Congress' 
jurisdiction,  or  which  conflicts  with  any  of  the  constitutional 
prohibitions,  is  not  only  unconstitutional  on  those  grounds, 
but  is  also  unconstitutional  as  lacking  in  due  process.  Thus 
legislation,  restraining  persons'  freedom  of  contract  and  of 
action,  which  purports  to  be  a  regulation  of  interstate 
commerce  but  is  held  not  to  be  so  by  the  Supreme  Court, 
has  been  declared  to  be  in  conflict  with  the  due  process 
clause.1  Similarly  in  the  first  of  the  legal  tender  cases,  in 
which  it  was  decided  that  Congress  had  acted  outside  of  its 
constitutional  sphere,  it  was  held  that  for  that  reason  the 
legislation  which  affected  adversely  the  property  rights  of 
creditors,  resulted  in  a  taking  of  property  without  due 
process.2 

But  the  due  process  clause  of  the  Fifth  Amendment  has 
much  greater  importance  as  a  limitation  upon  the  federal 
government  within  the  spheres  of  jurisdiction  which  have 
been  granted  to  it.  Although  the  spheres  of  operation  of 

1  Adair  v.  United  States  (1908)  208  U.  S.  161. 

a  Hepburn  v.  Griswold  (1869)  8  Wallace  603,  624.  The  statute  was 
later  held  to  be  constitutional.  Legal  Tender  Cases  (1870)  12  Wallace 
457.  See  sec.  83. 


4o8       THE  AMERICAN  CONSTITUTION     §  149 

the  due  process  clauses  in  the  Fifth  and  Fourteenth  Amend- 
ments are  different,  it  is  believed  that  their  meaning  is  the 
same  when  applied  to  similar  powers  exercised  by  the  federal 
and  by  the  state  governments. 

"The  Fourteenth  Amendment  legitimately  operates  to 
extend  to  the  citizens  and  residents  of  the  States  the  same 
protection  against  arbitrary  state  legislation  affecting  life, 
liberty,  and  property  as  is  offered  by  the  Fifth  Amend- 
ment against  similar  legislation  by  Congress."1 

The  due  process  clause  of  the  Fifth  Amendment  is  a  limita- 
tion upon  the  power  of  Congress  as  well  as  upon  the  execu- 
tive and  judicial  branches  of  the  national  government.2 
It  did  not  crystallize  for  all  time  the  usages  and  rules  of  the 
common  law  in  force  at  the  time  of  its  adoption,  but  estab- 
lished rather  as  a  standard  those  principles  of  liberty  and 
justice  which  lie  at  the  foundation  of  our  Anglo-Saxon 
institutions. 3 

§149.  Meaning  of  "Person,"  "Life,"  "Liberty,"  and 
"Property."  The  term  "person, "  as  used  in  the  due  pro- 
cess clauses  includes  corporations  as  well  as  natural  persons.4 
The  term  "life"  hardly  needs  explanation,  but  it  has  been 
said  to  include  not  merely  animal  existence,  but  the  reten- 
tion of  limbs  and  organs  by  which  life  is  enjoyed.5 
"Liberty"  includes  liberty  of  action  as  well  as  liberty  of 
person,  and  "property"  as  used  in  the  due  process  clauses 
covers  not  only  the  title  or  possession  to  property,  but  the 
right  to  acquire  and  to  use  it. 6 

1  Hibben  v.  Smith  (1903)  191  U.  S.  310,  325.    Though  in  French  v. 
Barber  Asphalt  Pav.  Co.  (1901)  181  U.  S.  324,  328,  the  court  said  that 
cases  may  perhaps  arise  in  which  the  clauses  will  be  differently  inter- 
preted, it  held  that  they  meant  the  same  with  regard  to  the  subject 
before  it,  that  of  special  assessments  for  local  improvements. 

2  Murray  v.  Hoboken  L.&I.  Co.  (1855)  18  Howard  272.  See  sec.  231. 

3  See  sec.  233.  ^- 

*  See  sec.  236;  McGehee,  Due  Process  of  Law,  189. 
s  Munn  v.  Illinois  (1876)  94  U.  S.  113,  142;  Bertholf  v.  O'Reilly  (1878) 
74  N.  Y.  509,  515. 
6  See  sec.  234. 


§§  1 50, 1 5 1  DUE  PROCESS :  EMINENT  DOMAIN  409 

§150.  Due  Process  in  Judicial  Proceedings.  As  we  have 
seen  in  a  previous  chapter, I  the  Constitution  throws  about 
persons  accused  of  crimes  against  the  United  States  certain 
safeguards  with  regard  to  ex  post  facto  legislation,  the  place 
of  trial,  indictment,  jury  trial,  self-incrimination,  unreason- 
able searches  and  seizures,  double  jeopardy,  the  right  to 
counsel  and  compulsory  process  to  obtain  witnesses,  con- 
frontation with  witnesses,  excessive  bail  and  fines,  and  cruel 
and  unusual  punishments.  These  safeguards  with  all  of 
their  implications  having  already  been  discussed,  will  not  be 
dealt  with  again  here.  We  have  also  considered  the  right  to 
a  jury  trial  in  civil  proceedings  in  federal  courts.2 

In  judicial  proceedings  in  order  that  there  shall  be  due 
process  a  defendant  must  have  notice,  and  an  opportunity 
to  be  heard,  which  includes  an  opportunity  to  introduce 
evidence.3  In  a  criminal  trial  the  defendant  must  be 
present  at  every  stage  of  the  trial,4  but  due  process  does  not 
require  that  he  be  present  in  an  appellate  court  where  he  is 
represented  by  counsel.5  The  court  must  also  have  juris- 
diction of  the  defendant  in  an  action  in  personam,  or  of  the 
res  in  an  action  in  rem. 6  We  have  already  fully  considered 
the  jurisdiction  of  the  federal  courts,  both  original  and 
appellate.7 

§151.  Due  Process  and  Interstate  and  Foreign  Commerce. 
We  have  already  discussed  with  some  fullness  the  powers  of 
Congress  over  interstate  and  foreign  commerce.  We  have 
seen  how  broad  a  definition  has  been  given  to  the  term 
"commerce, "  how  large  a  police  power  has  been  built  up  by 
Congress  under  the  commerce  clause,  and  how  far  it  has 
been  held  legitimate  for  Congress  to  go  in  regulating  con> 
merce  within  the  States  as  an  incident  to  the  regulation  of 

1  Chap.  15.  2  Chap.  16. 

s  See  sec.  235. 

«Hopt  v.  Utah  (.1884)  1 10  U.  S.  574. 

5  Schwab  v.  Berggren(  18892)  143  U.  S.  442. 

6  See  Chap.  29. 

'See  for  jurisdiction  of  the  Supreme  Court  sees.  42  and  43;  for 
jurisdiction  of  Circuit  Courts  of  Appeals  sec.  46;  for  jurisdiction  of 
District  Courts  see  sec.  44. 


410       THE  AMERICAN  CONSTITUTION     §  152 

interstate  commerce.1  But  even  within  the  sphere  of  inter- 
state commerce  congressional  legislation,  or  regulation  under 
statutory  authority,  may  be  lacking  in  due  process.  So  the 
Supreme  Court  has  declared  that  regulation  of  interstate 
rates  may  be  so  unreasonable  and  confiscatory  as  to  be  in 
conflict  with  the  due  process  clause. 2  The  question  of  what 
is  a  reasonable  rate  is  discussed  in  connection  with  the 
States'  police  power, 3  and  the  same  considerations  apply  to 
interstate  transportation.  It  was  also  declared  by  Chief 
Justice  White  that,  although  a  company  which  has  a  pipe 
line  from  its  own  well  in  one  State  to  its  own  refinery  in 
another  State  is  engaged  in  interstate  commerce,  it  would  be 
unreasonable  and  therefore  lacking  in  due  process  to  require 
it  to  become  a  common  carrier  of  oil  for  others. 4  In  dealing 
with  the  Webb-Kenyon  Act  it  was  assumed  that  the  limita- 
tions of  due  process  upon  congressional  legislation  with 
regard  to  intoxicating  liquors  under  the  commerce  clause 
is  the  same  as  the  limitations  of  due  process  upon  state 
legislation  on  the  same  subject  under  the  police  power.5 

§  1 52.  Due  Process  and  the  Taxing  Power.  It  seems  clear, 
on  principles  fully  discussed  in  connection  with  federal6  and 
state7  taxation,  that  taxes  can  only  be  levied  for  public 
purposes.  As  is  pointed  out,  however,  in  the  discussion 
referred  to,  federal  taxes  are  not  generally  vulnerable  at  this 
point  since  Congress  does  not  generally  levy  taxes  for  par- 
ticular purposes,  but  to  be  applied  to  the  expenses  of  the 
government  as  a  whole.  Appropriations  by  Congress  of 

1  Chap.  8. 

2  Interstate  Comm.  Comm.  v.  Union  Pac.  R.  R.  Co.  (1912)  222  U.  S. 
541;  Interstate  Comm.  Comm.  v.  Louisville  &  N.  R.  R.  Co.  (1913)  227 
U.  S.  88. 

a  Sec.  272. 

4  The  Pipe  Line  Cases  (1914)  234  U.  S.  548,  562. 

s  Clark  Distilling  Co.  v.  West  Virginia  (1917)  242  U.  S.  311,  332. 
See  sec.  274. 

See  also  the  discussion  in  Lottery  Case  (1903)  188  U.  S.  321,  362; 
Butterfield  v.  Stranahan  (1904)  192  U.  S.  470;  United  States  v.  Delaware 
&  H.  Co.  (1909)  213  U.  S.  366;  Wilson  v.  New  (1917)  243  U.  S.  332, 
346. 

6  Sec.  77.  ^  Sec.  249. 


§  152     DUE  PROCESS :  EMINENT  DOMAIN     41 1 

money  so  raised  to  purely  private  uses  would  undoubtedly 
be  unconstitutional,  but  there  has  been  no  inclination  to 
question  congressional  appropriations  in  the  courts.  It 
seems  a  reasonable  interpretation  of  the  taxing  power  given 
to  Congress  to  hold  that  the  exercise  of  that  power  need  not 
be  confined  to  the  raising  of  money  to  be  expended  in  those 
fields  in  which  the  national  government  is  given  exclusive  or 
paramount  authority.  The  Constitution  authorizes  the 
imposition  of  taxes  by  Congress  "to  pay  the  debts  and 
provide  for  the  common  defense  and  general  welfare  of  the 
United  States. ' ' x  We  have  seen  further  that  under  its  taxing 
power,  as  well  as  under  its  power  over  commerce,  Congress 
has  been  upheld  in  the  enactment  of  a  very  considerable 
body  of  legislation  whose  character  is  really  that  of  police 
regulations. 2 

Certain  important  limitations  are  expressly  placed  upon 
the  taxing  power  of  the  national  government  by  the  Con- 
stitution. Direct  taxes  are  forbidden  except  when  levied ' '  in 
proportion  to  the  census  or  enumeration"  provided  for  in 
the  Constitution.  Income  taxes  are  direct  taxes.  The 
Sixteenth  Amendment  was  adopted  to  take  income  taxes 
out  from  this  constitutional  limitation,  but  it  has  since  been 
held  that  stock  dividends  are  not  income  but  capital.  Suc- 
cession taxes,  however,  are  not  taxes  upon  property  but 
upon  a  privilege,  and  so  do  not  come  within  the  provision 
as  to  direct  taxes.  National  taxes  which  are  not  direct  must 
be  levied  with  geographical  uniformity  throughout  the 
United  States.  And,  finally,  Congress  cannot  tax  exports. 
All  of  these  matters  have  already  been  fully  discussed. 3 

Since  the  laws  of  a  state  have  no  extraterritorial  effect, 
tax  laws  cannot  reach  property  outside  of  the  territorial 
boundaries  of  the  state  passing  them.  The  question  of  the 
situs  of  property  for  taxation  has  received  its  fullest  con- 
sideration in  connection  with  taxes  levied  by  the  States. 
The  conclusions  there  reached  must,  however,  be  equally 
applicable  to  the  national  government.  They  may  be 

1  Art.  I,  sec.  8,  par.  i.     See  sec.  76. 

2  Sees.  78  and  91.  *  Sees.  79  and  82. 


412       THE  AMERICAN  CONSTITUTION     §  152 

summarized  as  follows1:  Land  may  be  taxed  only  by  the 
State  within  whose  boundaries  it  is.  Chattels  may  be 
taxed  by  the  State  within  whose  boundaries  they  are.  The 
maxim  mobilia  sequunter  personam  has  been  assumed  to 
apply  to  tangible  personal  property  and  to  give  the  State 
of  the  owner  the  right  to  tax  though  the  chattels  are  outside 
of  its  boundaries,  but  this  has  been  declared  by  the  Supreme 
Court  to  be  incorrect.  Choses  in  action  may  be  taxed  in  the 
State  of  domicile  of  the  owner.  They  may  also  be  taxed  at 
the  domicile  of  the  debtor.  (This  is  perhaps  not  true  of 
bonds  when  the  bonds  themselves  are  not  in  the  taxing 
State.)  Whether,  when  they  are  represented  by  bonds, 
negotiable  paper  and  stock,  they  may  be  taxed  in  a  State 
where  these  evidences  of  rights  are,  though  it  is  neither 
the  domicile  of  the  owner  nor  of  the  debtor,  seems  not  to  be 
definitely  settled  as  yet.  Income  may  be  taxed  at  the 
domicile  of  the  person  receiving  it,  or  in  the  State  where  the 
property  is  located  from  which  it  is  derived.  Whether,  if  a 
person  owns  bonds,  stock,  or  negotiable  paper,  which  are 
in  a  State  which  is  neither  the  domicile  of  the  debtor  nor  of 
the  owner,  that  State  can  tax  the  income  seems  not  to  have 
been  decided.  An  inheritance  tax  can  only  be  imposed  upon 
land  by  the  State  where  it  is  located.  This  should  also  be 
true  of  chattels,  but  taxes  have  been  levied  by  the  State  of 
the  deceased's  residence.  In  the  case  of  intangible  property 
the  State  of  the  deceased's  domicile  may  impose  an  in- 
heritance tax.  It  seems  that  the  State  of  the  debtor's  domi- 
cile may  also  levy  such  a  tax,  unless,  perhaps,  in  the  case 
when  the  debt  is  represented  by  bonds  or  negotiable  paper, 
which  are  not  in  the  State.  Where  a  debt  owed  to  the  de- 
ceased is  represented  by  bond  or  mortgage,  which  is  in  a 
State  other  than  that  of  the  domicile  of  the  deceased  or  of 
the  debtor,  it  has  been  held  that  that  State  may  also  levy 
an  inheritance  tax  upon  its  transfer.  The  same  arguments 
would  apply  to  corporate  stock. 

In  DeGanay  v.  Lederer2  a  federal  income  tax  levy  was 

1  See  the  full  discussion  in  Chap.  30. 
-  (1919)  250  U.  S.  376. 


§153    DUE  PROCESS:  EMINENT  DOMAIN     413 

upheld  upon  stocks,  bonds,  and  mortgages,  belonging  to  an 
alien  nonresident,  secured  upon  property  in  the  United 
States  or  payable  by  persons  or  corporations  domiciled  in 
the  United  States,  the  income  being  collected  and  trans- 
mitted by  an  agent  here,  and  the  evidences  of  debt  being 
here.  This  was  a  case,  then  in  which  both  the  debtors  or 
obligors  were  within  the  United  States,  and  the  obligations 
were  evidenced  by  bonds,  stocks  and  mortgages  which  were 
also  within  the  taxing  territory. 

In  the  case  of  a  specific  tax  notice  and  hearing  are  not 
necessary  to  due  process.  But  in  the  case  of  a  tax  based 
upon  value  these  are  necessary  incidents.  This  question 
and  the  sufficiency  of  notice  are  more  fully  dealt  with  in 
connection  with  state  taxation.  * 

§153.  Due  Process  and  the  Impairment  of  Contracts. 
The  Constitution  forbids  the  States  to  pass  laws  impairing 
the  obligations  of  contracts. 2  This  has  been  interpreted  to 
include  franchises  and  other  contracts  to  which  the  State 
itself  is  a  party.  But  it  is  held  that  a  State  cannot  by  con- 
tract preclude  its  subsequent  exercise  of  its  police  powers, 
and  that  contracts  between  individuals  are  made  subject 
to  the  future  exercise  of  those  powers. 3 

There  is  no  constitutional  clause  which  in  express  terms 
forbids  the  national  government  to  impair  the  obligations 
of  contracts.  But  in  the  first  of  the  cases  involving  the 
constitutionality  of  legal  tender  legislation  it  was  said  with 
regard  to  the  application  of  the  due  process  clause : 

"A  very  large  proportion  of  the  property  of  civilized 
men  exists  in  the  form  of  contracts.  .  .  .  And  it  is 
beyond  doubt  that  the  holders  of  these  contracts  were  and 
are  as  fully  entitled  to  the  protection  of  this  constitutional 
provision  as  the  holders  of  any  other  description  of 
property."4 

'  Sec.  259. 

aArt.  I,  sec.  i«,  par.  I. 

*  See  the"  full  discussion  of  these  subjects  in  chap.  22. 
<  Hepburn  v.  Griswold  (1869)  8  Wallace  603,  624.     In  the  Sinking 
Fund  Cases  (1878)  99  U.  S.  700,  718,  the  court  said:  "The  United  States 


414  THE  AMERICAN  CONSTITUTION  §§  154,  155 

This  case  was  later  overruled,  and  the  issuance  of  legal 
tender  notes  held  constitutional,  but  this  was  not  on  the 
ground  that  contracts  are  not  protected  by  the  due  process 
clause  of  the  Fifth  Amendment,  but  on  the  grounds  that  the 
contracts  were  not  directly  impaired,  but  only  indirectly 
affected,  and  that  even  under  the  contract  clause  applicable 
to  States  contracts  are  made  subject  to  the  exercise  by  the 
States  of  essential  governmental  powers. x  It  would  seem, 
then,  that  contracts  have  as  substantial  protection  against 
federal  action  under  the  due  process  clause  as  they  have 
under  the  contract  clause  against  state  action. 2 

§154.  Due  Process  and  the  War  Power.  This  subject 
is  so  fully  dealt  with  in  the  chapter  on  the  war  power  and 
control  of  military  affairs  that  it  would  constitute  mere 
repetition  to  go  over  it  again.  The  reader  is,  therefore, 
referred  to  that  chapter. 3 

§155.  Due  Process  and  the  Government  of  the  Territories 
and  the  District  of  Columbia.  We  have  seen  in  our  discussion 
of  the  power  of  the  national  government  to  acquire  terri- 
tory that  the  mere  annexation  of  territory  does  not  bring  it 
under  the  constitutional  guaranties.4  It  would  follow, 
therefore,  that  until  the  Constitution  is  extended  to  such 

cannot  any  more  than  a  State  interfere  with  private  rights,  except  for 
legitimate  governmental  purposes.  They  are  not  included  within  the 
constitutional  prohibition  which  prevents  States  from  passing  laws  im- 
pairing the  obligation  of  contracts,  but  equally  with  the  States  they  are 
prohibited  from  depriving  persons  or  corporations  of  property  without 
due  process  of  law.  .  .  .  The  United  States  are  as  much  bound  by 
their  contracts  as  are  individuals.  If  they  repudiate  their  obligations,  it 
is  as  much  repudiation,  as  it  would  be  if  the  repudiator  had  been  a  State, 
or  a  municipality  or  a  citizen.  No  change  can  be  made  in  the  title 
created  by  the  grant  of  the  lands,  or  in  the  contract  for  the  subsidy 
bonds,  without  the  consent  of  the  corporation.  All  this  is  indisputable. " 

1  Legal  Tender  Cases  (Knox  v.  Lee;  Parker  v.  Davis)  (1870)  12  Wal- 
lace 457,  450,  451.  See  the  discussion  of  these  cases  in  sec.  83. 

3  See  the  recent  interesting  case  of  United  States  v.  Northern  Pacific 
Railway  Co.  (1921)  256  U.  S.  51.  ,»  « 

3  Chap.  9,  particularly  sec.  99.  See  also  chapter  if,  with  regard  to 
war-time  legislation,  affecting  freedom  of  speech  and  of  the  press. 

« Sec.  103. 


§  156     DUE  PROCESS:  EMINENT  DOMAIN     415 

territories  the  due  process  clause  does  not  constitute  a  limit- 
ation upon  congressional  legislation  operative  there. 

Congress  exercises  over  the  territories  and  over  the  Dis- 
trict of  Columbia  not  only  the  powers  of  a  national  govern- 
ment, but  also  all  of  the  powers  which  a  State  may  exercise 
within  its  own  borders. x  It,  therefore,  may  exercise  within 
those  areas  the  same  police  powers  which  the  States  possess, 2 
and  it  would  seem  that  the  due  process  clause  of  the  Fifth 
Amendment  in  the  District  of  Columbia  and  the  territories 
where  it  is  effective  would  put  the  same  limits  upon  the 
exercise  of  those  powers  by  the  national  government  as  it 
does  upon  their  exercise  by  the  States. 

§156.  Due  Process  and  Administrative  Action.  It  is 
not  necessary  that  every  determination  of  fact  or  of  law 
which  may  result  in  depriving  a  person  of  liberty  or  property 
shall  be  made  by  a  judicial  tribunal,  and  it  is  competent  for 
the  legislature  to  make  the  determination  of  an  adminis- 
trative officer  conclusive  with  regard  to  questions  of  fact. 
This  was  determined  as  early  as  1855  when  the  Supreme 
Court  held  that  an  administrative  officer  might  be  author- 
ized to  issue  a  distress  warrant  against  a  revenue  collector 
and  that  his  decision  with  regard  to  the  facts  justifying  the 
issuance  might  constitutionally  be  made  final.3  Similarly 
it  has  been  held  that  the  determination  of  an  administrative 
officer  may  be  made  conclusive  with  regard  to  the  liability 
of  a  person  to  a  tax,4  with  regard  to  the  appraisement5  and 
classification6  of  goods  taxed,  as  to  the  exclusion  of  persons 
from  the  use  of  the  mail  because  of  fraud, 7  and  on  the  ques- 
tion whether  a  person  falls  within  a  class  which  may  be  pre- 
cluded from  admission  to  the  country.8  Administrative 
officers  may  also  be  vested  with  power  to  make  final  de- 

1  See  sees.  101  and  105. 

3  See  chap.  32. 

3  Murray  v.  Hoboken  L.  &  I.  Co.  (1865)  18  Howard  272. 

« vSpringer  v.  United  States  (1880)  102  U.  S.  586. 

s  Hilton  v.  Merritt  (1884)  no  U.  S.  97. 

6  Butterfield  v.  Stranahan  (1904)  192  U.  S.  470. 

7  Public  Clearing  House  v.  Coyne  (1904)  194  U.  S.  497. 

8  United  States  v.  Ju  Toy  (1905)  198  U.  S.  253.  * 


4i6       THE  AMERICAN  CONSTITUTION     §  157 

cisions  on  matters  of  law, T  though  this  is  not  so  frequently 
done,  and  statutes  will  probably  not  be  very  readily  in- 
terpreted as  having  this  effect.2  But,  of  course,  an  ad- 
ministrative officer  has  no  authority  to  act  outside  of  his 
jurisdiction,  and  it  is  competent  for  a  court  to  determine 
whether  he  has  done  so. 3  Ordinarily  notice  and  a  reasonable 
opportunity  to  be  heard  are  required  by  due  process  before 
a  person  is  deprived  of  life,  liberty,  or  property,  where  some 
fact  must  be  determined  whose  determination  is  not  the 
result  merely  of  computation.4  In  conformity  with  this 
principle  it  has  been  declared  that  before  an  alien  can  be 
deported  on  the  ground  that  he  is  a  pauper  and  likely  to 
become  a  public  charge  he  must  be  given  some  notice  and  an 
opportunity  to  be  heard,  though  they  may  be  of  an  informal 
character, 5  and  that  where  a  person  threatened  with  ex- 
clusion contends  that  he  is  a  citizen  and  desires  to  call 
witnesses,  the  refusal  to  allow  him  to  do  so  is  a  denial  of  due 
process. 6 

§157.  Does  Due  Process  Include  Equal  Protection?  The 
Fourteenth  Amendment  declares  that  no  State  shall  "deny 
to  any  person  within  its  jtirisdiction  the  equal  protection 
of  the  laws."  This  has  been  interpreted  to  guaranty  the 
protection  of  reasonably  equal  laws,  and  so  to  prohibit 

1  Reetz  v.  Michigan  (1903)  188  U.  S.  505;  United  States  v.  Hitchcock 
(1903)  190  U.  S.  316. 

a  Gonzales  v.  William  (1904)  192  U.  S.  i ;  American  School  of  Magnetic 
Healing  v.  McAnnultyTT9O2)  187  U.  S.  94. 

3  Smelting  Co.  v.  Kemp  (1881)  104  U.  S.  636.  This  may  involve  the 
determination  of  whether  there  has  been  a  clear  abuse  of  discretion,  or  a 
decision  unsupported  by  evidence.  Interstate  Comm.  Comm.  v .  Union 
Pac.  R.  R.  Co.  (1912)  222  U.S.  541,547;  Interstate  Cbmm^CQmm*iL. 
Louisville  &  N.R.  R.  Co.  (1913)  227  U.  S.  88,  91. 

4~Hager  v.  Reclamation  District  (1884)  in  U.  S.  701,  709. 

s  The  Japanese  Immigrant  Case  (1903)  189  U.  S.  86.  This  would  seem 
to  modify  the  statement  in  the  earlier  case,  where  an  alien  was  excluded 
on  the  same  ground,  that  "the  statute  does  not  require  inspectors  to 
take  any  testimony  at  all,  and  allows  them  to  decide  on  their  own  in- 
spection and  examination  the  question  of  the  right  of  any  alien  immi- 
grant to  land."  Ekiu  v.  United  States  (1892)  142  U.  S.  651,  663. 

6  Chin  Yow  v.  United  States  (1908)  208  U.  S.  8. 


§  1 57     DUE  PROCESS :  EMINENT  DOMAIN     417 

unreasonable  discrimination.  The  equal  protection  clause 
has  received  much  judicial  interpretation,  and  is  discussed 
in  another  chapter. z  It  applies,  however,  only  to  the  States, 
and  there  is  no  provision  similarly  worded  which  applies 
to  the  national  government. 

In  considering  state  legislation  in  its  relation  to  the 
Fourteenth  Amendment  the  Supreme  Court  has  declared 
that  arbitrary  action  is  forbidden  by  the  due  process  clause 
as  well  as  the  clause  guarantying  equal  protection, 2  and  has 
also  treated  as  vital  to  due  process  as  well  as  to  equal  protec- 
tion the  fact  that  a  state  statute  operates  upon  all  alike.3 
In  McCray  v.  United  States4  a  federal  tax  was  attacked  on 
the  ground,  among  others,  that  it  lacked  due  process  because 
the  classification  was  unreasonable  and  arbitrary.  The 
court  said : 

"Conceding  merely  for  the  sake  of  argument  that  the 
due  process  clause  of  the  Fifth  Amendment,  would  avoid 
an  exertion  of  the  taxing  power  which,  without  any  basis 
for  classification,  arbitrarily  taxed  one  article  and  ex- 
cluded an  article  of  the  same  class,  such  concession  would 
be  wholly  inapposite  to  the  case  in  hand." 

In  the  Second  Employers'  Liability  Cases, 5  in  answering  an 
attack  upon  the  statute  as  unconstitutionally  classifying 
both  employers  and  employees,  the  Supreme  Court  said : 

' '  But  it  does  not  follow  that  this  classification  is  viola- 
tive  of  the  '  due  process  of  law '  clause  of  the  Fifth  Amend- 
ment. Even  if  it  be  assumed  that  that  clause  is 
equivalent  to  the  '  equal  protection  of  the  laws '  clause  of 
the  Fourteenth  Amendment,  which  is  the  most  that  can  be 
claimed  for  it  here,  it  does  not  take  from  Congress  the 

1  Chap.  33. 

3  Dent  v.  West  Virginia  (1889)  129  U.  S.  114,  124. 

3  Leeper  v.  Texas  (1891)  139  U.  S.  468;  Giozza  v.  Tiernan  (1893)  148 
U.  S.  657,  662;  Duncan  v.  Missouri  (1894)  152  U.  S.  377,  382. 

« (1904)  195  U.  S.  27,  61.  See  also  Billings  v.  United  States  (1914) 
232  U.S.  261,283. 

s  (1912)  223  U.S.  1,52. 
27 


4i  8       THE  AMERICAN  CONSTITUTION     §  157 

power  to  classify,  nor  does  it  condemn  exertions  of  that 
power  merely  because  they  occasion  some  inequalities. 
On  the  contrary,  it  admits  of  the  exercise  of  a  wide  dis- 
cretion in  classifying  according  to  general,  rather  than 
minute  distinctions,  and  condemns  what  is  done  only 
when  it  is  without  any  reasonable  basis,  and  therefore  is 
purely  arbitrary." 

The  classifications  in  question  were  held  to  be  reasonable. 
In  upholding  a  federal  graduated  income  tax  the  Supreme 
Court  made  the  following  statement : 

"And  no  change  in  the  situation  here  would  arise  even 
if  it  be  conceded,  as  we  think  it  must  be,  that  this  doctrine 
[that  the  Fifth  Amendment  does  not  conflict  with  the 
taxing  power]  would  have  no  application  in  a  case  where 
although  there  was  a  seeming  exercise  of  the  taxing  power, 
the  act  complained  of  was  so  arbitrary  as  to  constrain  to 
the  conclusion  that  it  was  not  the  exertion  of  taxation  but 
a  confiscation  of  property,  that  is,  a  taking  of  the  same  in 
violation  of  the  Fifth  Amendment,  or,  what  is  equivalent 
thereto  was  so  wanting  in  basis  for  classification  as  to 
produce  such  a  gross  and  patent  inequality  as  to  inevit- 
ably lead  to  the  same  conclusion.  We  say  this  because 
none  of  the  propositions  relied  upon  in  the  remotest 
degree  present  such  questions."1 

No  federal  legislation  has  as  yet  been  declared  lacking  in 
due  process  because  it  denied  the  equal  protection  of  the 
laws.  On  the  other  hand  the  Supreme  Court  has  enter- 
tained and  given  serious  consideration  to  attacks  upon 
federal  legislation  based  upon  the  ground  that,  because  of 
unreasonable  classification,  it  denied  the  protection  of  rea- 
sonably equal  laws.  Furthermore,  we  have  in  the  last  case 
referred  to  a  statement  that  classification  may  be  so  grossly 
unreasonable  as  to  be  unconstitutional.  It  seems,  there- 
fore, that  the  conception  of  due  process  does  exclude  legis- 

'Brushaber  v.  Union  Pac.  R.  R.  Co.  (1916)  240  U.  S.  i,  24.  Cf. 
La  Belle  Iron  Works  v.  United  States  (1921)  41  Sup.  Ct.  R.  528. 


§  1 58    DUE  PROCESS :  EMINENT  DOMAIN     419 

latron  which  inflicts  inequality  of  burden,  which  is  clearly 
arbitrary,  and  without  any  basis  in  reason. 

§158.  The  Power  of  Eminent  Domain.  After  the  due 
process  clause  of  the  Fifth  Amendment  there  is  a  clause 
declaring,  "nor  shall  private  property  be  taken  for  public 
use  without  just  compensation."  The  Supreme  Court  has 
declared  that  the  power  of  eminent  domain  would  inhere  in 
the  federal  government  without  any  express  constitutional 
provision,  being  a  power  which  belongs  to  every  free  govern- 
ment and  which  is  incident  to  sovereignty,  and  that  this 
power  enables  the  federal  government  to  take  property 
within  the  States  without  their  consent.  The  clause  in  the 
Fifth  Amendment  is  not  the  source  of  this  power,  but  merely 
a  limitation  upon  its  exercise. x 

No  express  provision  was  inserted  in  the  Fourteenth 
Amendment  with  regard  to  the  taking  of  property  for  public 
use  by  the  States,  and  it  was  claimed  that,  since  a  separate 
clause  on  the  subject  was  contained  in  the  Fifth  Amend- 
ment, the  subject-matter  of  that  clause  could  not  reasonably 
be  held  to  be  included  within  the  scope  of  due  process. 
The  Supreme  Court,  however,  held  otherwise. 2 

All  kinds  of  property  is  subject  to  the  power  of  eminent 
domain,  including  franchises  and  contracts,  and  property 
which  has  previously  been  acquired  by  the  owner  by  the 
exercise  of  the  same  power.  It  is  a  power  which  can  only  be 
exercised  by  the  State  or  its  grantee,  and  the  right  to  exer- 
cise it  cannot  be  contracted  away. 3 

It  is  clear  that  private  property  cannot  be  taken  by  the 
power  of  eminent  domain  for  a  private  purpose  even  though 
compensation  be  made. 4  The  use  must  be  a  public  one. 
What  is  a  public  use  is  considered  at  length  in  connection 
with  the  exercise  of  the  power  by  the  States.5  The  same 
principles  apply  to  the  exercise  of  the  power  by  the  national 

1  Kohl  v.  United  States  (1875)  9*  U.  S.  367;  United  States  v.  Jones 
(1883)  109  U.  8.513. 

2  See  sec.  260.  3  See  sees.  261. 

4  Missouri  Pac.  Ry.  v.  Nebraska  (1896)  164  U.  S.  403,  417,  and  cases 
cited.  See  also  sec.  260.  s  See  sec.  262. 


420       THE  AMERICAN  CONSTITUTION     §  158 

government  within  the  spheres  in  which  it  may  act  under 
the  Constitution.1  The  national  government  may,  for 
instance,  exert  this  power  in  order  to  obtain  sites  for  public 
buildings,2  in  order  to  construct  highways  for  interstate 
commerce,3  and  for  the  purpose  of  establishing  parks  and 
national  memorials. 4 

Since  it  is  the  right  in  chattels  and  land  which  constitutes 
property  rather  than  the  objects  themselves,  the  infringe- 
ment of  property  rights  constitutes  a  taking  which  must  be 
justified  as  having  been  done  with  due  process.5  But  if  a 
private  property  right  is  held  subject  to  a  public  right,  the 
exercise  of  the  public  right  will  not  constitute  a  taking  of 
private  property.  So  the  owner  of  the  bed  of  a  navigable 
stream  holds  it  subject  to  the  public  right  of  navigation,  and, 
if  the  stream  is  an  interstate  highway,  he  holds  it  subject 
to  congressional  regulation.  If  Congress,  then,  makes  use 
of  the  bed  of  the  stream  for  structures  beneficial  to  inter- 
state commerce,  though  the  owner's  use  is  interfered  with, 
this  is  not  a  taking  for  which  compensation  must  be  made. 6 
So  also  interference  by  the  federal  government  with  a  ripar- 
ian owner's  access  to  a  stream  which  is  an  interstate  highway 
is  not  a  taking  of  his  property,  since  his  right  was  sub- 
ject to  the  public  right  to  use  the  stream  for  navigation,  and 
the  right  of  Congress  to  control  it  in  the  interest  of  inter- 
state commerce. 7 

The  subject  of  the  measure  of  compensation  in  condemna- 
tion proceedings  is  considered  in  connection  with  the  exer- 
cise of  the  power  of  eminent  domain  by  the  States,  and  the 
reader  is  referred  to  that  discussion.8 

1  Kohl  v.  United  States  (1875)  91  U.  S.  367,  372.  a  Ibid.,  367. 

a  United  States  v.  Jones  (1883) -109  U.  S.  513. 

4  Shoemaker  v.  United  States  (1893)  147  U.  S.  282;  United  States  v- 
Gettysburg  El.  Ry.  Co.  (1896)  160  U.  S.  668. 

sPumpelly  v.  Green  Bay  Co.  (1871)  13  Wallace  166;  Cooley,  Con- 
stitutional Limitations  (7th  ed.)  787;  12  Corpus  Juris  1215. 

6  United  States  v.  Chandler- Dunbar  W.  P.  Co.  (1913)  229  U.  S.  53,  62. 

'Scranton  v.  Wheeler  (1900)  179  U.  S.  141.  And  see  Eldridge  v. 
Trezevant  (1896)  160  U.  S.  452  (property  bordering  on  Mississippi 
subject  to  lessee  construction).  8  Sec.  264. 


§  158     DUE  PROCESS :  EMINENT  DOMAIN     421 

Notice  and  an  opportunity  to  be  heard  are  necessary  to 
due  process  in  condemnation  proceedings.1  Notice  by 
publication  is  sufficient  against  a  non-resident  owner,  and 
also  against  a  resident  owner  who  cannot  be  served  with  due 
diligence. 2 

It  is  competent  for  Congress  to  authorize  state  tribunals 
to  determine  the  amount  due  from  the  United  States  to 
persons  whose  property  is  taken  by  the  national  govern- 
ment. 3 

1  United  States  v.  Jones  (1883)  109  U.  S.  513,  519.    See  also  sec.  265. 

3  See  sec.  265. 

a  United  States  v.  Jones  (1883)  109  U.  S.  513. 


CHAPTER  XVIII 

THE  LATER  AMENDMENTS  AND  THE  FEDERAL  GOVERNMENT  x 

§159.  The  Thirteenth  Amendment.  This  amendment 
adopted  in  1865  declares  in  section  one,  that, 

"neither  slavery  nor  involuntary  servitude,  except  as  a 
punishment  for  crime  whereof  the  party  shall  have  been 
duly  convicted,  shall  exist  within  the  United  States  or 
any  place  subject  to  their  jurisdiction." 

By  section  two  it  is  provided  that,  "Congress  shall  have 
power  to  enforce  this  article  by  appropriate  legislation." 

It  is  to  be  noted  that  this  amendment  operates  equally  as 
a  limitation  upon  the  federal  and  state  governments.  But 
it  does  more  than  limit  governmental  action.  It  forbids 
individual  action  also  which  reduces  persons  to  slavery  or  to 
involuntary  servitude. 2  Moreover,  it  expressly  extends  to 
"any  place"  subject  to  the  jurisdiction  of  the  United  States 
as  well  as  to  the  United  States  themselves,  and,  therefore, 
applies  to  "unincorporated"  as  well  as  to  "incorporated" 
territories.3 

The  history  of  slavery  in  this  country  and  of  the  enact- 
ment of  the  Thirteenth  Amendment  are  fully  considered 

1  The  Eleventh  Amendment  was  adopted  to  meet  the  situation  created 
by  the  decision  of  the  Supreme  Court  that  the  Constitution  gave  it 
jurisdiction  of  suits  against  States,  and  is  discussed  in  the  chapter  on  the 
judiciary.    See  sec.  42. 

The  Twelfth  Amendment  changed  the  method  of  electing  the  Presi- 
dent and  Vice-President.  It  will  be  found  discussed  in  sec.  25. 

2  So  it  operates  to  abolish  slavery  among  the  Choctaw   Indians, 
United  States  v.  Choctaw  Nation  (1903)  38  Ct.  of  Claims  558,  566,  and 
the  Alaskan  tribes,  in  re  Sah  Qual  (1886)  31  Fed.  327. 

3  See  the  discussion  of  the  Insular  Cases,  sec.  103. 

422 


§  159         THE  LATER  AMENDMENTS  423 

in  connection  with  the  discussion  of  the  constitutional  limit- 
ations upon  state  powers.1  That  has  also  seemed  the  more 
appropriate  place  in  which  to  go  at  length  into  the  meaning 
of  the  guaranties  against  slavery  and  involuntary 
servitude.2  The  discussion  of  these  matters  will  not  be 
repeated  here. 

"  It  is  not  open  to  doubt  that  Congress  may  enforce  the 
Thirteenth  Amendment  by  direct  legislation,  punishing 
the  holding  of  a  person  in  slavery  or  in  involuntary  servi- 
tude except  as  a  punishment  for  crime.  In  the  exercise 
of  that  power  Congress  has  enacted  these  sections  de- 
nouncing peonage,  and  punishing  one  who  holds  another 
in  that  condition  of  involuntary  servitude.3  This  legis- 
lation is  not  limited  to  the  territories  or  other  parts  of  the 
strictly  national  domain,  but  is  operative  in  the  States 
and  wherever  the  sovereignty  of  the  United  States  extends. 
We  entertain  no  doubt  of  the  validity  of  this  legislation,  or  of 
its  applicability  to  the  case  of  any  person  holding  another 
in  a  state  of  peonage,  and  this  whether  there  be  municipal 
ordinance  or  state  law  sanctioning  such  holding.  It 
operates  directly  on  every  citizen  of  the  Republic, 
wherever  his  residence  may  be. " 4 

Discrimination  against  colored  persons  by  innkeepers, 
common  carriers,  and  proprietors  of  places  of  public  amuse- 
ment is  not  subjecting  them  to  slavery  or  imposing  upon 
them  a  badge  of  slavery  so  that  such  discrimination  can  be 
forbidden  by  Congress  under  the  authority  given  in  the 
Thirteenth  Amendment.5  Nor  do  mere  trespasses,  or 
assaults,  or  acts  of  intimidation  which  prevent  one  from 
making  a  contract  which  he  otherwise  would  have  made 

1  Sees.  215  to  219. 

3  Sees.  220  to  222. 

3  U.  S.  Rev.  Stat.,  sec.  1990  and  5526.  For  other  provisions  of  the 
criminal  law  directed  against  slavery  and  peonage  see  U.  S.  Crim.  Code, 
sees.  907  to  932;  Zoline's  Federal  Criminal  Law  and  Procedure,  chap.  40. 

*  Clyatt  v.  United  States  (1905)  197  U.  S.  207,  218.  See  also  United 
States  v.  Harris  (1882)  1 06  U.  S.  629,  640. 

s  Civil  Rights  Cases  (1883)  109  U.  S.  3,  20  to  25. 


424       THE  AMERICAN  CONSTITUTION     §  160 

constitute  slavery  or  involuntary  servitude,  simply  because 
those  acts  might  legally  have  been  done  in  respect  to  slaves, 
and  Congress  has  no  authority  under  the  Thirteenth 
Amendment  to  legislate  against  such  acts.1 

§  1 60.  The  Fourteenth  Amendment.  This  amendment, 
adopted  in  1868,  is  principally  designed  to  establish  certain 
rights  against  impairment  by  the  States,  though  it  has 
some  provisions  applicable  to  the  national  government.  In 
the  first  place  it  declares  that  "all  persons  born  or 
naturalized  in  the  United  States,  and  subject  to  the  juris- 
diction thereof,  are  citizens  of  the  United  States  and  of  the 
States  wherein  they  reside."  This  is,  of  course,  operative 
upon  the  national  government  as  well  as  upon  the  States, 
but  an  important  result  of  it  is  to  make  clear  that  state 
citizenship  is  dependent  upon  national  citizenship.  In  the 
next  clause  the  States  are  forbidden  to  "make  or  enforce 
any  law  which  shall  abridge  the  privileges  and  immunities 
of  citizens  of  the  United  States."  These  provisions  are 
fully  discussed  in  an  earlier  chapter.2  The  amendment 
then  goes  on  to  forbid  any  State  to  deprive  any  person  of 
"life,  liberty,  or  property  without  due  process  of  law,"  or 
any  person  within  its  jurisdiction  of  "the  equal  protection 
of  the  laws." 

The  second  section  makes  new  provision  for  the 
apportionment  of  Representatives  in  Congress  because  of 
the  enfranchisement  of  the  negroes,  but  provides  that  if 
male  inhabitants  over  twenty-one  years  of  age  are  denied 
the  right  of  suffrage  representation  in  Congress  shall  be 
reduced  in  proportion.  These  provisions  are  fully  dealt  with 
elsewhere.3 

Section  three  excludes  from  the  right  to  hold  office  per- 
sons who,  having  previously  held  office  and  sworn  to  support 
the  Constitution,  had  participated  in  the  Rebellion.  Con- 

1  Hodges  v.  United  States  (1906)  203  U.  S.  i.  Justice  Harlan  and 
Justice  Day  dissented.  2  Chap.  n. 

3  With  regard  to  due  process  see  chaps.  28  to  32.  With  regard  to  equal 
protection  see  chap.  33.  With  regard  to  apportionment  of  Representa- 
tives see  sec.  63 . 


§  160          THE  LATER  AMENDMENTS  425 

gress,  however,  was  given  power  to  remove  this  disability 
by  a  two-thirds  vote  of  each  house. 

Section  four  established  permanently  the  validity  of  debts 
and  obligations  incurred  by  the  national  government  during 
the  Civil  War,  but  forbade  the  United  States  and  the  States 
to  assume  or  pay  any  debt  incurred  in  aid  of  the  Rebellion,  or 
any  claim  for  the  loss  or  emancipation  of  slaves.  This  was 
to  forestall  any  attempt  by  Representatives  in  Corfgress  from 
the  southern  States  to  procure  the  repudiation  of  debts 
incurred  by  the  government,  or  to  saddle  upon  the  govern- 
ment the  debts  of  the  Confederacy,  and  to  make  those  who 
had  contributed  to  the  support  of  the  Confederacy  bear  the 
loss  resulting  from  its  failure. 

By  section  five  of  the  Fourteenth  Amendment  it  is 
provided  that  "The  Congress  shall  have  power  to  enforce 
by  appropriate  legislation  the  provisions  of  this  article." 
Congress,  believing  that  it  was  acting  under  this  consti- 
tutional authorization,  passed  the  so-called  Civil  Rights  Act 
in  1875,  which  among  other  things  made  it  a  misdemeanor 
for  proprietors  of  inns,  public  conveyances,  theaters  and 
other  places  of  amusement  to  deny  equal  enjoyment  of  their 
facilities  to  any  person  on  account  of  race,  color,  or  previous 
condition  of  servitude.  In  holding  this  statute  uncon- 
stitutional1 the  Supreme  Court  pointed  out  that  it  was 
State  action  of  a  particular  character  which  was  prohibited, 
and  not  the  conduct  of  private  individuals.  In  effect  the 
support  of  the  legislation  was  based  upon  the  assumption 
that  because  the  States  were  prohibited 

"to  act  in  a  particular  way  on  a  particular  subject,  and 
power  is  conferred  upon  Congress  to  enforce  the  pro- 
hibition, this  gives  Congress  power  to  legislate  generally 
on  the  subject,  and  not  merely  power  to  provide  modes  of 
redress  against  such  state  legislation  or  action." 

But  the  court  said  that  "the  assumption  is  certainly  un- 
sound."2 

1  Civil  Rights  Cases  (1883)  109  U.  S.  3. 
*  Ibid.,  15. 


426       THE  AMERICAN  CONSTITUTION     §  160 

"It  does  not  authorize  Congress  to  create  a  code  of 
municipal  law  for  the  regulation  of  private  rights ;  but  to 
provide  modes  of  redress  against  the  operation  of  state 
laws,  and  the  action  of  state  officers,  executive  or  judicial, 
when  these  are  subversive  of  the  fundamental  rights 
specified  in  the  amendment."1 

The  court  seems  clearly  right  in  the  restrictions  which  it 
enforced  upon  congressional  action.  This  view  is  fortified 
by  the  fact  that  the  original  proposal  for  the  amendment 
was  to  the  effect  that 

"  Congress  shall  have  power  to  make  all  laws  which 
shall  be  necessary  and  proper  to  secure  to  the  citizens  of 
each  State  all  privileges  and  immunities  of  citizens  in  the 
several  States,  and  to  all  persons  in  the  several  States 
equal  protection  in  the  rights  of  life,  liberty,  and  property  " 

Strong  objection  was  made  in  debate  to  this  provision  on  the 
ground  that  it  would  allow  Congress  to  invade  the  proper 
legislative  sphere  of  the  States,  and  the  present  provision 
was  finally  substituted  in  its  place.2 

But  the  prohibition  of  the  Fourteenth  Amendment  is  not 
directed  solely  against  the  legislative  branch  of  the  state 
governments.  "Congress,  by  virtue  of  the  fifth  section  of 
the  Fourteenth  Amendment,  may  enforce  the  prohibitions 
whenever  they  are  disregarded  by  either  the  legislative,  the 
executive,  or  the  judicial  departments  of  the  States." 3  This 
it  may  do  by  removing  the  case  from  a  state  court  in  which  a 
guarantied  right  has  been  denied ,  into  a  federal  court  where 
it  will  be  acknowledged, 4  or  by  making  the  disregard  of  a 
constitutional  right  by  a  state  officer  a  criminal  offense.5 
Furthermore,  an  act  of  a  state  officer  comes  within  the  scope 

1  Civil  Rights  Cases  (1883)  109  U.  S.  3,  n.     See  also  United  States  v. 
Cruikshank  (1875)  92  U.  S.  542;  Virginia  v.  Rives  (1879)  looll.  S.  313; 
United  States  v.  Harris  (1883)  106  U.  S.  629. 

2  Flack,  The  Adoption  of  the  Fourteenth  Amendment,  56  et  seq. 
•»  Virginia  v.  Rives  (1879)  100  U.  S.  313,  318. 

*  Ibid. ',  Strauder  v.  West  Virginia  (1879)  100  U.  S.  303. 
sEx  parte  Virginia  (1879)  100  U.  S.  339. 


§  161          THE  LATER  AMENDMENTS  427 

of  the  amendment  if  it  infringes  one  of  the  guarantied  rights, 
though  such  act  was  not  authorized  by  the  laws  of  the  State. 

"The  theory  of  the  amendment  is  that  where  an  officer 
or  other  representative  of  a  State,  in  the  exercise  of  the 
authority  with  which  he  is  clothed,  misuses  the  power 
possessed  to  do  a  wrong  forbidden  by  the  amendment, 
inquiry  whether  the  State  has  authorized  the  wrong  is 
irrelevant."  x 

§  161.  The  Fifteenth  Amendment.2  \  Section  one  of  this 
amendment  declares  that,  "The  right  of  citizens  of  the 
United  States  to  vote  shall  not  be  denied  or  abridged  by  the 
United  States  or  by  any  State  on  account  of  race,  color,  or 
previous  condition  of  servitude."  By  section  two  it  is 
provided  that,  "Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation." 

The  Thirteenth  Amendment  having  abolished  slavery 
and  involuntary  servitude,  and  the  Fourteenth  Amendment 
having  assured  to  colored  persons  the  status  of  citizens,  the 
Fifteenth  Amendment  was  adopted  in  order  to  give  them  an 
equal  right  of  suffrage. 3  j  Although  the  first  section  of  this 
amendment  is  directed  against  the  United  States  as  well  as 
against  the  States,  no  federal  legislation  has  ever  been 
attacked  as  being  in  conflict  with  it.  Since  the  questions 
with  regard  to  the  scope  of  its  prohibition  have  come  up  in 
connection  with  state  legislation  it  has  seemed  appropriate 
to  consider  those  questions  in  connection  with  the  discussion 
of  the  constitutional  limitations  upon  the  powers  of  the 
States.4 

Congress  is  authorized  to  enforce  the  amendment  by 
"appropriate  legislation."  But  the  amendment  is  not 
directed  against  the  abridgment  of  the  right  of  citizens 
generally  to  vote.  It  is  directed  only  against  the  abridg- 
ment of  that  right  ' '  on  account  of  race,  color,  or  previous 

1  Home  Tel.  Co.  v.  Los  Angeles  (1913)  227  U.  S.  278,  287. 

2  Adopted  in  1870. 

J  Slaughter  House  Cases  (1872)  16  Wallace  36,  71. 
4  See  sec.  283. 


428  THE  AMERICAN  CONSTITUTION  §§162,  163 

condition  of  servitude."  Therefore,  congressional  legis- 
lation which  makes  it  a  crime  for  a  state  officer  to  refuse  to 
allow  persons  to  vote,  without  clearly  restricting  the  appli- 
cation of  the  statute  to  cases  where  the  refusal  is  on  account 
of  race,  color,  or  previous  condition  of  servitude,  is  uncon- 
stitutional. *  Again,  the  amendment  is  not  directed  against 
action  by  individuals,  but  against  action  by  the  States  or 
the  United  States.  So  an  attempt  by  federal  legislation  to 
punish  private  persons  who  conspire  to  prevent  negroes 
from  voting  is  not  within  the  power  granted  by  the 
amendment. 2 

§162.  Sixteenth  Amendment.  This  amendment  adopted 
in  1913,  is  as  follows:  "Congress  shall  have  power  to  lay 
and  collect  taxes  on  incomes,  from  whatever  source  derived 
without  apportionment  among  the  several  States,  and  with- 
out regard  to  any  census  enumeration."  This  amendment 
was  adopted  to  meet  the  situation  created  by  the  decision  of 
the  Supreme  Court  that  a  tax  upon  income  derived  from 
property  is  a  tax  upon  property,  and  so  a  direct  tax,  as  that 
term  is  used  in  the  constitutional  provision  with  regard  to 
taxation.  The  discussion  of  this  whole  subject,  with  the 
interpretation  put  upon  the  Sixteenth  Amendment,  will  be 
found  in  the  chapter  on  federal  taxation,  and  will  not  be 
here  repeated. 3 

§163.  Seventeenth  Amendment.  This  amendment  was 
also  adopted  in  1913.  The  Constitution  originally  provided 
for  the  choice  of  Senators  by  the  state  legislatures.4  The 
Seventeenth  Amendment  was  the  culmination  of  an  agi- 
tation for  the  popular  election  of  Senators  which  first  found 
expression  in  state  laws  or  party  regulations  giving  the 
electors  the  right  to  indicate  to  the  state  legislatures  the 
persons  whom  they  wished  the  latter  to  chose  for  Senators. 
The  amendment  declares  that  Senators  shall  be  elected  by 
the  electors  of  the  most  numerous  branch  of  the  State 
legislatures.  It  also  provides  for  elections  to  fill  vacancies, 

1  United  States  v.  Reese  (1875)  92  U.  S.  214. 

J  James  v.  Bowman  (1903)  190  U.  S.  127. 

3  Sec.  79.  4  See  sec.  66. 


§  164          THE  LATER  AMENDMENTS  429 

but  gives  authority  to  the  state  legislatures  to  empower  the 
governors  to  make  interim  appointments. x 

§164.  Eighteenth  Amendment.  This  is  the  Prohibition 
Amendment  which  was  adopted  in  1920.  Its  constitution- 
ality was  violently  attacked,  but  it  was  sustained  by  the 
Supreme  Court.  This  controversy  is  considered  in  the 
chapter  dealing  with  the  amending  of  the  Constitution. 2 

Section  one  of  this  amendment  declares  that, 

"After  one  year  from  the  ratification  of  this  article  the 
manufacture,  sale,  or  transportation  of  intoxicating  liquors 
within,  the  importation  thereof  into,  or  the  exportation 
thereof  from  the  United  States  and  all  territory  subject 
to  the  jurisdiction  thereof  for  beverage  purposes  is  hereby 
prohibited." 

The  Supreme  Court  has  said  with  regard  to  the  definition 
of  intoxicating  liquors : 

' '  While  recognizing  that  there  are  limits  beyond  which 
Congress  cannot  go  in  treating  beverages  as  within  its 
power  of  enforcement,  we  think  those  limits  are  not 
transcended  by  the  provision  of  the  Volstead  Act  (Title 
II,  sec.  i),  wherein  liquors  containing  as  much  as  one-half 
of  one  per  cent,  of  alcohol  by  volume  and  fit  for  use  for 
beverage  purposes  are  treated  as  within  that  power."3 

1  "  The  Senate  of  the  United  States  shall  be  composed  of  two  Senators 
from  each  State,  elected  by  the  people  thereof,  for  six  years ;  and  each 
Senator  shall  have  one  vote.  The  electors  in  each  State  shall  have  the 
qualifications  requisite  for  electors  of  the  most  numerous  branch  of  the 
state  legislatures. 

"When  vacancies  happen  in  the  representation  of  any  State  in  the 
Senate,  the  executive  authority  of  such  State  shall  issue  writs  of  election 
to  fill  such  vacancies:  Provided,  That  the  legislatures  of  any  State  may 
empower  the  executive  thereof  to  make  temporary  appointments  until 
the  people  fill  the  vacancies  by  election  as  the  legislature  may  direct. 

"  This  amendment  shall  not  be  so  construed  as  to  affect  the  election  or 
term  of  any  Senator  chosen  before  it  becomes  valid  as  a  part  of  the 
Constitution . "  a  Chap .  3 . 

*  National  Prohibition  Cases  (1920)  253  U.  S.  350,  387.  The  court 
refers  to  its  previous  decision  upholding  a  similar  definition  in  the  War- 
Time  Prohibition  Act  in  Jacob  Ruppert  v.  Caffey  (1920)  251  U.  S.  264. 


430        THE  AMERICAN  CONSTITUTION     §  165 

Section  two  of  the  amendment  declares  that,  "Congress 
and  the  several  States  shall  have  concurrent  power  to  enforce 
this  article  by  appropriate  legislation."  In  the  National 
Prohibition  Cases'1  the  Supreme  Court,  in  upholding  the 
Eighteenth  Amendment  and  the  legislation  passed  under  it, 
laid  down  the  following  propositions  among  others : 

"7.  The  second  section  of  the  amendment — the  one 
declaring  '  The  Congress  and  the  several  States  shall  have 
concurrent  power  to  enforce  this  article  by  appropriate 
legislation' — does  not  enable  Congress  or  the  several 
States  to  defeat  or  thwart  the  prohibition,  but  only  to 
enforce  it  by  appropriate  means. 

"8.  The  words '  concurrent  power '  in  that  section  do  not 
mean  joint  power,  or  require  that  legislation  thereunder 
by  Congress,  to  be  effective,  shall  be  approved  or  sanc- 
tioned by  the  several  States  or  any  of  them ;  nor  do  they 
mean  that  the  power  to  enforce  is  divided  between  Con- 
gress and  the  several  States  along  the  lines  which  separate 
or  distinguish  foreign  and  interstate  commerce  from  intra- 
state  affairs. 

"9.  The  power  confided  to  Congress  by  that  section, 
while  not  exclusive,  is  territorially  coextensive  with  the 
prohibition  of  the  first  section,  embraces  manufacture 
and  other  intrastate  transactions  as  well  as  importation, 
exportation  and  interstate  traffic,  and  is  in  no  wise  de- 
pendent on  or  affected  by  action  or  inaction  on  the  part 
of  the  several  States  or  any  of  them." 

It  seems  clear  from  these  propositions  that  Congress  may 
constitutionally  legislate  on  the  subject  of  intoxicating 
liquor  for  the  whole  country,  and  that  such  legislation  will 
annul  any  inconsistent  state  laws.  The  concurrent  power 
of  the  States  would  seem  to  consist  of  the  right  to  legislate 
with  regard  to  the  same  subject,  not  inconsistently  with  the 
terms  of  the  amendment  or  with  existing  federal  laws.2 

§  165.  The  Nineteenth  Amendment.  This  is  the  so-called 
Suffrage  Amendment,  adopted  in  1920  after  a  long  struggle. 

1  (1920)  253  U.  S.  350,  387.  2  See  sec.  285. 


§  165          THE  LATER  AMENDMENTS  431 

After  the  adoption  of  the  Fourteenth  Amendment  it  was 
contended  that  the  right  of  suffrage  was  a  privilege  of  United 
States  citizenship,  and  that,  since  the  States  were  prohibited 
to  abridge  the  privileges  and  immunities  of  citizens  of  the 
United  States,  they  could  not  thereafter  deny  the  vote  to 
women.  The  Supreme  Court,  however,  held  that,  while 
women  were  citizens  before  as  well  as  after  the  amendment, 
the  right  to  vote  was  not  a  privilege  inhering  in  citizenship, 
and  that  the  amendment  had  not  added  to  the  privileges  of 
citizenship. x 

But  gradually  the  suffrage  was  obtained  by  women  in  one 
State  after  another,  until  finally  they  found  themselves 
politically  strong  enough  to  induce  Congress  to  propose  the 
Suffrage  Amendment.  In  its  first  section  it  provides  that, 
"The  right  of  citizens  of  the  United  States  to  vote  shall  not 
be  denied  or  abridged  by  the  United  States  or  by  any  State 
on  account  of  sex."  The  second  section  declares  that, 
"Congress  shall  have  power,  by  appropriate  legislation,  to 
enforce  the  provisions  of  this  article."  It  will  be  noticed 
that  in  this  amendment  the  language  of  the  Fifteenth 
Amendment,  discussed  just  above,  has  been  followed, 
except  that  the  word  "sex"  has  been  substituted  for  the 
words  "race,  color,  or  previous  condition  of  servitude." 
What  has  been  said,  therefore,  about  the  Fifteenth  Amend- 
ment may  be  also  said  of  the  Nineteenth. 

The  constitutionality  of  the  amendment  has  been 
attacked,  and  the  Supreme  Court  will  very  shortly  pass 
upon  that  question.  In  view  of  the  fact  that  the  Fifteenth 
Amendment  has  repeatedly  been  assumed  to  be  consti- 
tutional, and  in  view  of  the  fact  that  the  attacks  made  upon 
the  constitutionality  of  the  Eighteenth  Amendment  proved 
unsuccessful,  it  may  reasonably  be  assumed  that  the  Nine- 
teenth Amendment  will  be  upheld.1 

1  Minor  v.  Happersett  (1874)  21  Wallace  162. 

1  See  the  discussion  of  the  power  to  amend  the  Constitution  in  sec.  22. 


PART  III 

THE  STATES 


28  433 


CHAPTER  XIX 

THE  STATES  UNDER  THE  CONSTITUTION 

§  1 66.  The  Powers  of  the  States  before  the  Tenth  Amend- 
ment. It  was  not  the  intention  of  the  framers  of  the  Federal 
Constitution  to  do  away  with  the  separate  States  and  out  of 
their  elements  to  form  a  single  national  state.  Nor  was  it 
their  purpose  to  leave  the  States  mere  administrative  units. 
While  acting  "to  form  a  more  perfect  union,"  they  were 
clearly  determined  that  it  should  be  a  union  not  only  of 
"indestructible  States,"  but  of  States  which  should  retain 
so  much  of  their  sovereignty  as  should  not  conflict  with  the 
functions  of  the  national  government,  or  with  express  pro- 
hibitions laid  upon  the  States.  No  reasonable  doubt  as  to 
this  purpose  can  exist  in  the  mind  of  one  who  reads  the 
Federal  Constitution.  He  finds  certain  defined  powers 
granted  to  the  national  government.  On  the  other  hand 
he  finds  the  existence  of  the  States  recognized,  and  certain 
express  limitations  put  upon  their  powers.  Finally,  he 
finds  that  it  was  thought  necessary,  near  the  close  of  the 
Constitution,  x  to  declare  that 

"This  Constitution  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof  and  all  treaties 
made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land,  and 
the  judges  in  every  State  shall  be  bound  thereby,  any- 
thing in  the  constitution  or  laws  of  any  State  to  the 
contrary  notwithstanding." 

Clearly  each  State  was  left  free  to  make  such  constitutional 
provisions  and  laws  as  it  saw  fit  so  long  as  they  did  not 
1  Art.  VI,  sec.  2. 

435 


436       THE  AMERICAN  CONSTITUTION     §  167 

conflict  with  the  powers  granted  to  the  central  government, 
or  with  the  express  prohibitions  put  upon  state  action.  It 
is  beyond  a  doubt  that  this  was  the  understanding  of  the 
framers  of  the  Constitution.1  Madison  declared  that, 

"The  powers  delegated  by  the  proposed  Constitution 
to  the  federal  government,  are  few  and  defined.  Those 
which  are  to  remain  in  the  state  governments,  are  numer- 
ous and  indefinite.  The  former  will  be  exercised 
principally  on  external  objects,  as  war,  peace,  negotiations, 
and  foreign  commerce;  with  which  last  the  power  of 
taxation  will,  for  the  most  part,  be  connected.  The 
powers  reserved  to  the  several  States  will  extend  to  all 
the  objects,  which,  in  the  ordinary  course  of  affairs,  con- 
cern the  lives,  liberties,  and  properties  of  the  people;  and 
the  internal  order,  improvement,  and  prosperity  of  the 
State."2 

§167.  The  Tenth  Amendment.  Nevertheless,  the  feeling 
was  repeatedly  expressed  in  the  state  constitutional  con- 
ventions that  the  Constitution  should  be  amended  by  the 
addition  of  a  bill  of  rights,  similar  to  those  which  had  become 
familiar  parts  of  the  state  constitutions,  and  which  should 
constitute  an  express  protection  against  possible  abuses  of 
power  by  the  central  government.  A  number  of  the  States 
in  adopting  the  Constitution  suggested  amendments  to  it, 
and,  as  a  result  of  this  action,  Congress  at  its  first  session 
proposed  to  the  States  twelve  amendments,  ten  of  which 
were  adopted.  The  Tenth  Amendment,  which  was  based 

1  The  whole  discussion  by  Madison  in  The  Federalist  of  the  powers  of 
the  central  government,  and  of  the  supposed  dangers  to  the  state  govern- 
ments recognizes  such  division  of  powers.  The  Federalist,  Nos.  41  to  44. 
Hamilton  asserted  in  the  New  York  Convention  that  the  Constitution 
established  such  division  of  powers.  II  Elliot's  Debates,  p.  362.  The 
same  point  was  made  by  Randolph  in  the  Virginia  Convention,  III 
Elliot's  Debates,  p.  464,  as  well  as  by  Marshall,  later  the  great  Chief 
Justice  of  the  United  States,  III  Elliot's  Debates,  p.  419;  and  by  Davie 
in  the  North  Carolina  Convention,  IV  Elliot's  Debates,  p.  58,  supported 
by  Maclaine  and  Iredell,  IV  Elliot's  Debates,  pp.  140  and  220. 

9  The  Federalist,  No.  45. 


§  168     STATES  UNDER  CONSTITUTION        437 

upon  suggestions  made  in  a  number  of  the  state  conventions, 
provides  that,  "The  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  the 
States,  are  reserved  to  the  States  respectively,  or  to  the 
people."1  Therefore,  when  a  State  exercises  a  govern- 
mental power  the  presumption  is  that  it  has  the  right  to  do 
so,  and  the  contrary  must  be  shown  by  force  of  some 
provision  in  the  Federal  Constitution,  or  in  the  constitution 
of  the  particular  State. 2 

§168.  State  Action  Expressly  Limited  by  Federal  Con- 
stitution and  Statutes.  It  was  obviously  imperative  that, 
though  the  States  retained  many  of  their  sovereign  powers, 
if  the  surrender  by  them  of  others  to  the  federal  govern- 
ment and  the  limitations  put  upon  the  States  by  the 
Constitution  were  to  be  effective,  the  States  must  not  pass 
legislation  in  conflict  with  the  constitutional  provisions  or 
with  valid  federal  statutes,  and  that  state  officials  must  sup- 

1  The  Ninth  Amendment  declares  that,  "The  enumeration  in  the 
Constitution  of  certain  rights  shall  not  be  construed  to  deny  or  disparage 
others  retained  by  the  people. "  "  This  clause  was  manifestly  introduced 
to  prevent  any  perverse  or  ingenious  misapplication  of  the  well-known 
maxim,  that  an  affirmative  in  particular  cases  implies  a  negation  in  all 
others;  and,  e  converse,  that  a  negation  in  particular  cases  implies  an 
affirmation  in  all  others.  The  maxim,  rightly  understood,  is  perfectly 
sound  and  safe;  but  it  has  often  been  strangely  forced  from  its  natural 
meaning  into  the  support  of  the  most  dangerous  political  heresies.  The 
amendment  was  undoubtedly  suggested  by  the  reasoning  of  The  Federal- 
ist on  the  subject  of  a  general  bill  of  rights."  Story  on  the  Constitution 
(5th  ed.),  sec.  1905.  See  The  Federalist,  No.  84. 

a  In  1783,  four  years  before  the  Constitutional  Convention,  Pelatiah 
Webster  thus  declared  what  the  division  of  powers  between  the  national 
and  state  governments  should  be:  "I  propose  further  that  the  powers  of 
Congress,  and  all  the  other  departments  acting  under  them,  shall  all  be 
restricted  to  such  matters  only  of  general  necessity  and  utility  to  all  the 
States  as  cannot  come  within  the  jurisdiction  of  any  particular  State,  or 
to  which  the  authority  of  any  particular  State  is  not  competent,  so  that 
each  particular  State  shall  enjoy  all  sovereignty  and  supreme  authority 
to  all  intents  and  purposes,  excepting  only  those  high  authorities  and 
powers  by  them  delegated  to  Congress  for  the  purposes  of  the  general 
union."  See  A  Memorial  in  Behalf  of  the  Architect  of  Our  Federal  Con- 
stitution, p.  43. 


438    THE  AMERICAN  CONSTITUTION  §§  1 69,  1 70 

port  the  Federal  Constitution.  All  this  would  seem  to  follow 
from  the  very  adoption  of  the  Constitution,  but  it  was  not  left 
to  inference.  Article  VI  contains  the  following  provisions : 

'This  Constitution  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof  and  all  treaties 
made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land,  and 
the  judges  in  every  State  shall  be  bound  thereby,  anything 
in  the  Constitution  or  laws  of  any  State  to  the  contrary 
notwithstanding.  x 

"The  Senators  and  Representatives  before  mentioned, 
and  the  members  of  the  several  State  Legislatures,  and  all 
executive  and  judicial  officers,  both  of  the  United  States 
and  of  the  several  States,  shall  be  bound  by  oath  or 
affirmation  to  support  this  Constitution ;  ..." 

§169.  The  Rights  of  New  States.  As  new  States  have 
been  admitted  by  Congress  into  the  Union,2  they  have 
become  automatically  possessed  of  all  of  the  political  rights 
of  the  original  States,  and  the  provisions  of  the  Tenth 
Amendment  aj)ply  to  them  as  well  as  to  the  States  which 
formed  the  Union  at  the  time  of  its  adoption.  It  is  not 
competent  for  Congress  to  take  from  a  new  State,  as  a 
condition  of  admission  to  the  Union,  any  power  possessed 
by  the  original  States.  Such  a  condition  has  no  more  effect 
to  restrict  the  powers  of  a  new  State,  than  has  congressional 
legislation  which  attempts  to  take  from  one  of  the  original 
States  any  power  reserved  to  it  by  the  Tenth  Amendment. 
The  Constitution  not  only  contemplates  a  union  of  in- 
destructible States,  but  a  union  of  equal  States. 3 

§  1 70.  The  Scope  of  the  Discussion  with  Regard  to  the  States. 
It  is  the  purpose  of  the  writer  in  the  third  part  of  this  book 

1  The  power  of  the  judiciary  to  enforce  this  provision  we  consider  in 
sec.  49. 

a  ' '  New  States  may  be  admitted  by  Congress  into  this  Union. "  Const, 
of  the  U.S.,  art.  IV,  sec.  3. 

3  Coyle  v.  Oklahoma  (1911)  221  U.  S.  559,  contains  a  most  interesting 
discussion  on  this  point.  And  see  sec.  106. 


§  170     STATES  UNDER  CONSTITUTION        439 

to  deal  only  with  the  direct  restrictions  put  upon  all  of  the 
States  by  the  people  of  the  United  States,  in  adopting  and 
amending  the  Federal  Constitution.  No  pretense  will  be 
made  of  dealing  with  the  restrictions  put  upon  the  various 
state  governments  by  their  individual  constitutions,  or 
with  the  formation  of  state  governments  under  state 
constitutions. 


CHAPTER   XX 

POLITICAL  LIMITATIONS 

§171.  Treaties  and  Compacts.  The  Constitution  de- 
clares that,  "No  State  shall  enter  into  any  treaty,  alliance,  or 
confederation,"1  and  a  little  later  that,  "No  State  shall, 
without  the  consent  of  Congress,  enter  into  any  agreement 
or  compact  with  another  State  or  with  a  foreign  power."5 
The  absolute  prohibition  is  clearly  directed  against  political 
combinations,  either  between  the  States  or  with  foreign 
nations,  while  the  provision  that  "any  agreement  or  com- 
pact" must  have  the  consent  of  Congress,  applies  to  agree- 
ments of  a  non-political  character.3  So  the  confederation 
of  the  southern  States  at  the  time  of  the  Civil  War  was 
illegal,  coming  within  the  absolute  prohibition  of  the 
Constitution  of  the  United  States,4  while  boundary  agree- 
ments between  two  or  more  States  are  legal  if  consented  to 
by  Congress. s  Agreements  made  between  the  States  before 
the  adoption  of  the  Constitution,  are  not  abrogated  by  the 
Constitution  except  in  so  far  as  they  may  conflict  with  its 
provisions. 6 

1  Art.  I,  sec.  10,  par.  I. 

a  Ibid.,  par.  3. 

a  Virginia  v.  Tennessee  (1892)  148  U.  S.  503,  519. 
•  «  Williams  v.  Bruffy  (1877)  96  U.  S.  176. 

s  Virginia  v.  Tennessee,  supra,  and  the  consent  may  be  implied,  and 
may  follow  the  agreement  as  well  as  precede  it. 

6  South  Carolina  v.  Georgia  (1876)  93  U.  S.  4;  Wharton  v.  Wise  (1893) 
153  U.  S.  155.  Though  article  VI  of  the  Articles  of  Confederation  for- 
bade States  to  make  treaties  with  foreign  nations,  and  forbade  them  to 
make  treaties  with  each  other  except  with  the  consent  of  Congress,  it 
left  them  free  to  make  non-political  agreements  among  themselves, 
according  to  the  decision  in  the  case  last  cited. 

440 


§§  172,  173   POLITICAL  LIMITATIONS  441 

§172.  Letters  of  Marque  and  Reprisal.  "No  State  shall 
.  .  .  grant  letters  of  marque  or  reprisal."1  Such  letters  are 
issued  by  a  State  authorizing  the  seizure  of  property  to 
redress  injuries  inflicted  by  another  nation  for  which  satis- 
faction cannot  be  otherwise  obtained.  It  is  not  necessarily 
an  act  of  war,  but  is  very  likely  to  lead  to  open  hostilities. 
Obviously,  therefore,  the  States  should  not  be  left  with  the 
power  to  issue  such  letters,  and  so  embroil  the  whole  nation 
in  war. 2 

§173.  Coining  of  Money  and  Emitting  Bills  of  Credit. 
The  States  are  forbidden  by  the  Constitution  to  "coin 
money,  emit  bills  of  credit,"  or  "make  anything  but  gold 
and  silver  coin  a  legal  tender  in  payment  of  debts."3  The 
propriety  of  giving  to  the  national  government  exclusive 
power  to  coin  money  and  to  determine  its  value  is  obvious, 
in  order  that  the  medium  of  exchange  may  be  uniform 
throughout  the  country.  The  wisdom  of  this  provision 
was  not  questioned  in  the  Constitutional  Convention.  The 
Articles  of  Confederation4  had  left  a  concurrent  jurisdiction 
in  Congress  and  in  the  States  to  coin  money,  though  giving 
to  Congress  the  sole  power  to  regulate  the  value  and  alloy 
of  all  coin. 

The  term  "bills  of  credit"  might  be  given  an  interpre- 
tation broad  enough  to  cover  all  written  obligations  binding 
the  credit  of  a  State.  The  evil,  however,  which  was  clearly 
in  the  minds  of  the  drafters  of  the  Constitution  when  they 
provided  that  States  should  not  emit  bills  of  credit,  was  that 
from  which  the  country  had  suffered  during  and  after  the 
Revolution — the  issuing  of  bills  upon  the  credit  of  the 
States,  intended  to  pass  as  a  general  medium  of  exchange 
in  place  of  money. s  Therefore  the  Supreme  Court  has  held 

1  Const,  of  the  U.  S.,  art.  I,  sec.  10,  par.  i.       ^ 

2  Under  the  Articles  of  Confederation,  art.  IX,  Congress  alone  could 
issue  letters  of  marque  and  reprisal  in  time  of  peace,  but  the  States 
could  issue  them  in  time  of  war. 

3  Art.  I,  sec.  10,  par.  i.    See  sec.  83,  for  a  consideration  of  the  power 
of  the  central  government  to  coin  money  and  regulate  its  value. 

<  Art.  IX. 

s  The  Federalist,  No.  44. 


442    THE  AMERICAN  CONSTITUTION  §§  1 74,  1 75 

that  the  prohibition  does  not  apply  to  obligations  of  a  State 
issued  for  services  actually  received  or  money  borrowed  for 
present  use,  merely  because  they  are  payable  to  bearer,  or 
receivable  in  payment  of  taxes,  where  it  does  not  appear 
that  they  were  issued  with  the  intention  that  they  should 
circulate  as  money.1  Nor  does  the  prohibition  apply  to 
bills  of  credit  emitted  by  a  state  bank,  even  though  the 
State  be  the  only  stockholder.2 

The  clause  which  declares  that,  "No  State  shall  .  .  . 
make  anything  but  gold  and  silver  coin  a  tender  in  payment 
of  debts,"  has  also  its  historical  background  in  the 
demoralizing  tender  laws  of  the  States  in  the  period  preced- 
ing the  adoption  of  the  Constitution.  It  is  also  a  necessary 
part  of  the  general  scheme  for  a  uniform  monetary  system 
and  medium  of  exchange  throughout  the  country.3 

§174.  Titles  of  Nobility  Not  to  be  Granted.  The  Con- 
stitution declares  that,  "No  State  shall  .  .  .  grant  any 
title  of  nobility."4  This  provision  hardly  needs  comment. 
It  was  the  purpose  of  the  people  of  the  United  States  to 
establish  a  democracy,  and  to  guard  against  the  abuses  of 
English  monarchy  supported  by  a  privileged  nobility. 

§175.     Duties  on  Exports,  Imports,  and  Tonnage. 

"No  State  shall,  without  the  consent  of  Congress,  lay 
any  imposts  or  duties  on  imports  or  exports,  except  what 
may  be  absolutely  necessary  for  executing  its  inspection 
laws ;  and  the  net  produce  of  all  duties  and  imposts  laid  by 
any  State  on  imports  or  exports,  shall  be  for  the  use  of  the 
Treasury  of  the  United  States ;  and  all  such  laws  shall  be 
subject  to  the  revision  and  control  of  the  Congress.5 

1  Houston  &  Tex.  Cent.  R.  R.  Co.  v.  Texas  (1900)  177  U.  S.  66,  con- 
taining a  full  review  of  earlier  cases. 

"Briscoe  v.  Bank  of  Kentucky  (1837)  n  Peters  257;  Darrington  v. 
Bank  of  Alabama  (1851)  13  Howard  12. 

3  See  sec.  83  for  a  consideration  of  the  power  of  the  national  govern- 
ment to  issue  legal  tender  notes. 

4  Art.  I,  sec.  10,  par.  i.    There  is  a  similar  provision  with  regard  to 
the  United  States  Government  in  art.  I,  sec.  9,  par.  8. 

s  Const,  of  U.  S.,  art.  I,  sec.  10,  par.  2. 


§  175  POLITICAL  LIMITATIONS  443 

"No  State  shall,  without  the  consent  of  Congress,  lay 
any  duty  of  tonnage."1 

In  Woodruff  v.  Parham2  we  have  a  very  interesting  dis- 
cussion of  the  meaning  of  the  words  "imports  or  exports" 
as  used  in  the  paragraph  of  the  Constitution  quoted  above. 
The  conclusion  reached  was  that  the  terms  had  to  do  solely 
with  exports  and  imports  to  and  from  foreign  countries, 
and  that  they  were  not  intended  to  apply  to  exports  and 
imports  from  one  State  to  another. 3  The  force  of  this 
decision  is  substantially  nullified,  however,  by  the  position 
taken  by  the  Supreme  Court4  that  a  tax  levied  upon  the 
movement  of  goods  from  one  State  to  another,  or  upon 
goods  while  so  moving  is  an  unconstitutional  interference 
with  interstate  commerce,  the  regulation  of  which  is  com- 
mitted to  the  national  government.5 

With  regard  to  the  prohibition  of  "any  duty  on  tonnage" 
the  Supreme  Court  has  said6: 

' '  The  general  prohibition  upon  the  States  against  levying 
duties  on  imports  or  exports  would  have  been  ineffectual 
if  it  had  not  been  extended  to  duties  on  the  ships  which 
serve  as  the  vehicles  of  conveyance.  This  extension  was 
doubtless  intended  by  the  prohibition  of  any  duty  on 
tonnage.  It  was  not  only  a  pro  rata  tax  which  was 
prohibited,  but  any  duty  on  the  ship,  whether  a  fixed  sum 
upon  its  whole  tonnage,  or  a  sum  to  be  ascertained  by 
comparing  the  amount  of  tonnage  with  the  rate  of  duty." 

1  Const,  of  U.  S.,  art.  I,  sec.  10,  par.  3.  2  (1868)  8  Wallace  123. 

3  The  contrary  view  seems  to  have  been  held  earlier  by  the  Supreme 
Court.  See  Brown  v.  Maryland  (1827)  12  Wheaton  419,  449;  Almy  v. 
California  (1860)  24  Howard  169. 

<  Coe  v.  Erral  (1885)  1 16  U.  S.  517. 

s  This  is  discussed  in  connection  with  the  consideration  of  the  com- 
merce clause.  See  sec.  94. 

6  Steamship  Co.  v.  Port  wardens  (1867)  6  Wallace  31.  See  also  Inman 
Steamship  Co.  v.  Tinker  (1876)  94  U.  S.  238. 

An  ordinance  which  requires  vessels  to  pay  for  the  use  of  municipal 
wharves  according  to  tonnage  is  not  unconstitutional.  Packet  Co. 
v.  Keokuck  (1877)  95  U.  S.  80;  Packet  Co.  v.  St.  Louis  (1879)  100 
U.  S.  423- 


444  THE  AMERICAN  CONSTITUTION  §§  176, 177 

§176.  States  Not  to  Keep  Troops  or  Engage  in  War.  It  is 
provided  in  the  Constitution  that : 

"No  State  shall,  without  the  consent  of  Congress, 
.  .  .  keep  troops  or  ships  of  war  in  time  of  peace,  .  .  . 
or  engage  in  war,  unless  actually  invaded  or  in  such 
imminent  danger  as  will  not  admit  of  delay." 

Since  it  was  the  purpose  of  the  Constitution  to  put  the 
control  of  international  relations  in  the  central  government 
it  was  obviously  necessary  to  prohibit  individual  States  from 
engaging  without  the  consent  of  Congress  in  wars  which 
would  almost  inevitably  involve  the  whole  country.  The 
exception  in  the  last  clause  is  based  upon  the  principle  of 
self-preservation.  If  States  are  not  separately  to  engage  in 
war  they  should  not  keep  up  separate  military  and  naval 
establishments.  The  provision  that  no  State  shall  keep 
"troops"  is  aimed  at  the  maintenance  of  regular,  pro- 
fessional military  forces,  and  does  not  prevent  the  training 
of  a  state  militia.  "The  militia  of  the  several  states"  is 
expressly  referred  to  in  another  part  of  the  Constitution.1 
§177.  Republican  Form  of  Government.  Section  four  of 
the  Fourth  Article  of  the  Constitution  is  as  follows : 

"The  United  States  shall  guarantee  to  every  State  in  the 
Union  a  republican  form  of  government,  and  shall  protect 
each  of  them  against  invasion,  and  on  application  of  the 
legislature,  or  of  the  executive  (when  the  legislature  can- 
not be  convened),  against  domestic  violence." 

There  is  not  here  a  direct  prohibition  of  any  other  than  a 
republican  form  of  government  in  the  States,  but  clearly  the 
provision  that  the  United  States  shall  guarantee  such  a  form 
of  government  is  in  effect  a  prohibition  of  any  other. 

In  case  of  insurrection  or  revolution  within  a  State  the 
federal  government  is  also  empowered  to  determine  which 
of  two  governments,  which  may  have  been  set  up,  is  in  fact 
the  true  government,  since  it  has  authority  upon  application 

1  Art.  II,  sec.  2,  par.  i.  With  regard  to  the  power  of  the  national 
government  over  the  militia  of  the  States,  see  sees.  97  and  131. 


§  177  POLITICAL  LIMITATIONS  445 

to  protect  each  State  against  "domestic  violence."  The 
Supreme  Court  has  declared  that  the  determination  whether 
a  State  has  a  republican  form  of  government  is  nnt.a  judicial 
question,  but  one  solely  for  Congress  to  decide.1  This  it 
normally  does  by  admitting  Representatives  and  Senators 
to  its  membership.  It  might  refuse  to  do  this  on  the  ground 
that  the  States  by  which  they  were  sent  did  not  have  a 
republican  form  of  government,  although  it  has  never  taken 
such  a  course.  Undoubtedly  it  might  further  take  affir- 
mative action  to  oust  a  government  which  it  considered 
unrepublican. 

Also/it  is  primarily  for  Congress  to  determine  which  of 
two  contending  governments  in  a  State  is  the  real  govern- 
ment, when  application  is  made  by  one  or  the  other  for  aid, 
but  Congress  may  delegate  this  power  to  the  President 
as  it  has  in  fact  done.  The  court  will  not  review  such  a 
determination. 2 

1  Pacific  Telephone  Co.  v.  Oregon  (1912)  223  U.  S.  118  (claim  that 
initiative  and  referendum  make  government  unrepublican) ;  Mountain 
Timber  Co.  v.  Washington  (1916)  243  U.  S.  219,  234. 

2  i  Luther  v.  Borden  (1849)  7  Howard  I. 


CHAPTER  XXI 

BILLS  OF  ATTAINDER  AND  EX  POST  FACTO  LEGISLATION 

§178.  Bills  of  Attainder.  States  are  expressly  forbidden 
to  pass  any  "bill  of  attainder."1  "A  bill  of  attainder  is  a 
legislative  act  which  inflicts  punishment  without  a  judicial 
trial."2  The  English  law  distinguished  a  bill  of  attainder 
proper,  which  inflicted  the  death  penalty,  and  a  bill  of  pains 
and  penalties,  which  inflicted  a  lesser  punishment.  How- 
ever, the  term  "bill  of  attainder"  in  the  Constitution  of  the 
United  States  is  interpreted  as  including  both.  Such  bills 
were  passed  in  England  in  time  of  rebellion,  or  public  excite- 
ment, or  when  Parliament  was  particularly  subservient  to 
the  Crown.  The  legislative  body  was  prosecutor  and  judge 
unrestrained  by  any  rules  of  criminal  procedure,  and  at 
times  passed  judgment  upon  whole  classes  of  individuals. 

§179.  Ex  Post  Facto  Laws.  Blackstone  in  the  first 
volume  of  his  Commentaries3  protests  against  the  practice 
1 '  of  making  laws  ex  post  facto  when  after  an  action  (indiffer- 
ent in  itself)  is  committed,  the  legislature  then  for  the  first 
time  declares  it  to  have  been  a  crime."  We  are  told  that 
this  is  an  improper  use  and  an  improper  writing  of  the  term ; 
that  it  should  be  written  ex  post  facto,  and  means ' '  by  matter 
subsequent,"  being  used  thus,  and  with  this  sense,  in  the 
Digest,  as  when  one  might  speak  of  a  contract  which  has 
become  void  ex  post  facto. 4  But  it  was  in  Blackstone's  sense 
that  the  term  was  used  in  the  Constitution,  where  States 
were  forbidden  to  pass  any  "  ex  post  facto  law," s and  in  that 

1  Const,  of  the  U.  S.,  art.  I,  sec.  10,  par.  i.   See,  for  similar  restriction 
upon  the  federal  government,  sec.  135. 

2  Cummings  v.  Missouri  (1866)  4  Wallace  277,  323.  3  P.  46. 
"  Note  in  34  Law  Quart.  Rev.,  8.                 s  Art.  I,  sec.  10,  par.  i. 

446 


§  i8o  EX  POST  FACTO  LAWS  447 

sense  it  is  now  an  accepted  part  of  our  legal  terminology — 
namely,  as  descriptive  of  retroactive  criminal  legislation. 

§180.  What  Are  Ex  Post  Facto  Laws.  At  an  early  day 
the  Supreme  Court  attempted  to  classify  legislation  which  is 
ex  post  facto,  as  follows: 

"  ist.  Every  law  that  makes  an  action  done  before  the 
passing  of  the  law,  and  which  was  innocent  when  done, 
criminal;  and  punishes  such  action.  2d.  Every  law 
that  aggravates  a  crime,  or  makes  it  greater  than  it  was 
when  committed.  3d.  Every  law  that  changes  the 
punishment,  and  inflicts  a  greater  punishment  than  the 
law  annexed  to  the  crime,  when  committed.  4th.  Every 
law  that  alters  the  legal  rules  of  evidence,  and  receives 
less  or  different  testimony  than  the  law  required  at  the 
time  of  the  commission  of  the  offense,  in  order  to  convict 
the  offender."1 

That  a  law  which  increases  the  punishment  for  a  crime 
already  committed  is  ex  post  facto,  is  conceded,  but  when 
does  a  change  in  the  character  of  punishment  to  be  inflicted 
constitute  an  increase  in  the  punishment?  The  highest 
court  of  New  York  has  declared  that  any  law  which  in  any 
way  changes  the  character  of  the  punishment  to  be  inflicted 
for  an  act  committed  before  the  passage  of  the  law  is  ex  post 
facto,  that  any  other  rule  would  lead  to  uncertainty  in  the 
application  of  the  constitutional  guaranty;  and  applying 
this  doctrine  to  a  situation  where  the  punishment  had  been 
changed  from  death  to  life  imprisonment,  held  the  statute 
unconstitutional.2  It  would  seem  that  wherever  there  is 
any  doubt  as  to  whether  the  change  in  fact  mitigates  the 
rigor  of  the  law,  the  statute  making  the  change  should  be 
held  to  be  ex  post  facto,  but  that  where  there  is  no  reasonable 
doubt  that  the  penalty  has  been  decreased,  the  legislation 
should  be  upheld.  It  is  but  reasonable  to  assume  that 

1  Calder  v.  Bull  (1798)  3  Dallas  386,  390. 

a  Shepherd  v.  People  (1862)  25  N.  Y.  406.  But  see  the  doubt  ex- 
pressed as  to  so  sweeping  a  proposition  in  People  v.  Hayes  (1894)  140 
N.  Y.  484. 


448        THE  AMERICAN  CONSTITUTION     §  180 

every  rational  man  wants  to  live  as  long  as  he  can,  and  the 
only  fair  conclusion  would  seem  to  be  that  life  imprisonment 
is,  therefore,  a  lesser  penalty  than  death.  x  A  statute  which, 
after  the  commission  of  a  murder  changes  the  method  of 
inflicting  the  death  penalty  from  hanging  to  electrocution,  is 
not  unconstitutional. a 

It  is  not  uncommon  for  statutes  to  inflict  a  heavier 
penalty  upon  a  second  offender  than  upon  one  who  commits 
an  offense  for  the  first  time.  Such  statutes  have  been 
attacked  as  ex  post  facto  when  they  are  passed  after  the 
first  offense  has  been  committed,  on  the  ground  that  they 
add  to  the  penalty  for  such  first  offense.  It  has  been  f  n- 
swered,  however,  that  the  punishment  is  for  the  second, 
and  not  the  first  offense,  and  that  the  statute  may, 
therefore,  be  constitutionally  given  effect  under  such 
circumstance. 3 

The  fourth  proposition  quoted  at  the  opening  of  this 
section,  from  an  early  Supreme  Court  case,  that  "every 
law  that  alters  the  legal  rules  of  evidence,  and 
receives  less  or  different  testimony  than  the  law  required 
at  the  time  of  the  commission  of  the  offense,  in  order  to 
convict  the  offender"  is  ex  post  facto,  has  received  some 
qualification.  The  later  cases  have  held  that  a  change  in 
the  rules  of  evidence  made  after  the*  commission  of  a  crime, 
is  not  ex  post  facto  where  the  change  does  not  lessen  the 
amount  or  measure  of  proof  necessary  to  convict,  and  by 
which  no  right  is  given  to  the  prosecution  which  is  not  also 
given  to  the  defense.4 

Procedural  changes  may  or  may  not  be  ex  post  facto 
according  to  whether  they  do  or  do  not  deprive  the  defend- 
ant of  "any  of  those  substantial  protections  with  which  the 

1  So  held  in  Commonwealth  v.  Wyman  (1853)  12  Cush.  (Mass.)  237; 
McGuire  v.  State  (1898)  76  Miss.  504.    The  language  of  the  Supreme 
Court  in  Rooney  v.  North   Dakota  (1905)  196  U.  S.  319,  supports  this 
view. 

2  Malloy  v.  South  Carolina  (1915)  237  U.  S.  180. 

J  McDonald  v.  Massachusetts  (1901)  180  U.  S.  311. 
"  Thompsons.  Missouri  (1898)  171  U.  S.  380. 


§  i8i  EX  POST  FACTO  LAWS  449 

existing  law  surrounds  the  person  accused  of  crime."1  By 
this  test  it  was  held,  in  the  case  last  cited,  that  to  reduce  a 
criminal  jury  from  twelve  to  eight  was  ex  post  facto;  and  it 
has  also  been  held  to  be  within  the  constitutional  prohibition 
to  take  from  a  plea  of  guilty  of  murder  in  the  second  degree, 
which  is  accepted  by  the  court,  its  effect  as  an  acquittal  of 
the  crime  of  murder  in  the  first  degree. 2  But  after  a  crime 
has  been  committed  it  is  by  the  same  test,  not  unconsti- 
tutional to  change  the  place  of  trial,  or  the  number  of  judges, 
or  the  qualification  of  jurors. 3 

§  1 8 1 .  Ex  Post  Facto  Laws  Which  A  re  Not  Penal  in  Form. 
Astatute  may  be  ex  post  facto  though  not  penal  in  form  if 
its  sole  purpose  is  to  inflict  a  penalty  upon  persons  for  past 
acts.  Such  were  the  provisions  introduced  into  the  Missouri 
constitution  after  the  Civil  War  disqualifying  those  who  had 
been  guilty  of  past  disloyalty  from  engaging  in  the  profes- 
sions of  teaching  or  preaching,  and  from  acting  as  managers 
or  directors  of  corporations.  It  was  held  that  such  past  con- 
duct had  no  bearing  upon  present  fitness  to  act  in  such 
capacities,  and  that  the  disqualifications  were,  therefore, 
merely  in  the  nature  of  penalties,  and  unconstitutional.4 
But  legislation  providing  for  the  cancellation  of  naturaliz- 
ation certificates  obtained  by  fraud  is  held  to  be  consti- 
tutional even  as  to  certificates  obtained  before  the 
enactment  of  the  legislation,  on  the  ground  that  it  simply 
deprives  a  person  "of  a  privilege  that  was  never  rightfully 
his" — the  transaction  by  which  naturalization  was  ob- 
tained being  fraudulent  is  voidable,  and  the  legislation 
simply  provides  for  its  avoidance. 5 

1  Cooley,  Constitutional  Limitations  (7th  ed.),  p.  381,  approved  in 
Thompson  v.  Utah  (1898)  170  U.  S.  343. 

2  Krug  v.  Missouri  (1898)  170  U.  S.  221. 

*  See  respectively  Gret  v.  Minnesota  (1869)  9  Wallace  35;  Duncan  v. 
Missouri  (1894)  152  U.  S.  377;  Gibson  v.  Mississippi  (1896)  162  U.  S.  565. 

<Cummings  v.  Missouri  (1866)  4  Wallace  277.  But  past  disloyalty 
has  a  distinct  bearing  upon  fitness  to  exercise  the  suffrage,  and  legisla- 
tion depriving  persons  guilty  of  past  disloyalty  of  the  right  to  vote  is 
constitutional.  Boyd  v.  Mills  (1894)  53  Kan.  594. 

s  Johannessen  v.  United  States  (1912)  225  U.  S.  227. 

29 


450       THE  AMERICAN  CONSTITUTION    §  182 

§182.  Judicial  Decisions  and  the  Ex  Post  Facto  Rule. 
The  prohibition  of  ex  post  facto  laws  applies  only  to  legisla- 
tive acts,  and,  therefore,  does  not  cover  a  situation  where  a 
court  departs  from  a  previous  decision  in  dealing  with  acts 
done  after,  and  in  reliance  upon  that  decision. I  Then,  if  a 
statute  makes  certain  acts  criminal,  and  the  highest  court 
of  the  State  declares  the  statute  unconstitutional,  and  later 
reverses  this  decision,  are  acts  prohibited  by  the  statute, 
and  done  after  and  in  reliance  upon  the  first  decision, 
punishable  under  the  statute?  The  person  who  did  the 
acts  in  question  cannot  escape  liability  on  the  ground  that 
the  later  decision  is  ineffective  because  ex  post  facto ;  wrA 
the  Constitution  forbids  the  passing  of  any  ex  post  facto 
law  it  contemplates  only  legislative  acts.  A  court,  even 
when  it  declares  a  statute  constitutional  which  it  had 
previously  held  unconstitutional,  does  not  legislate,  it 
simply  says  that  it  made  a  mistake  in  its  previous  decision, 
and  that  the  legislative  enactment  has  been  law  all  the 
while.  But  the  tendency  of  state  courts  has  been  to  hold  a 
person,  in  the  situation  supposed  above,  not  guilty,  though 
they  have  been  embarrassed  to  find  a  satisfactory  ground  for 
these  decisions.2  Perhaps  a  sufficient  reason  should  be 
that,  while  a  mistake  of  law  is  ordinarily  no  defense  in  a 
criminal  action,  a  mistake  of  law  shared  by  that  branch  of 
the  state  government  whose  function  it  is  to  expound  the 
law  should  be  pleadable  as  a  defense  in  a  prosecution  by  the 
State. 

1  Ross  v.  Oregon  (1913)  227  U.  S.  150. 

2  See  an  interesting  note  in  33  L.  R.  A.  (N.  S.)  788. 


CHAPTER  XXII 

PROTECTION  OF  CONTRACTS 

§183.  The  Contract  Clause  and  Its  Original  Purpose.  A 
provision  of  the  Federal  Constitution  which  has  had  a 
wider  effect  than  its  language  would  at  first  suggest, 
a  wider  effect,  also,  than  was  probably  dreamed  of  by 
its  framers,  is  that  which  declares  that,  "No  State  shall  .  .  . 
pass  any  .  .  .  law  impairing  the  obligation  of  contracts."1 
Towards  the  end  of  the  session  of  the  Constitutional  Con- 
vention Mr.  King  of  Massachusetts  "moved  to  add,  in  the 
words  used  in  the  Ordinance  of  Congress  establishing  new 
States, 2  a  prohibition  on  the  States  to  interfere  in  private 
contracts.'3  This  suggestion  was  very  little  debated,  but 
at  a  later  day  was,  in  its  present  form,  incorporated  into  the 
constitution.4  The  Federalist  deals  with  this  provision 
only  twice,  and  then  in  very  general  terms. s  However,  it 
seems  practically  certain  that  it  was  introduced  for  the 
protection  of  creditors,  because,  as  Madison  tells  us : 

1 '  In  the  internal  administration  of  the  States  a  violation 
of  Contracts  had  become  familiar  in  the  form  of  depreci- 
ated paper  made  a  legal  tender,  of  property  substituted 

'Art.  I,  sec.  10,  par.  i. 

2  The  Ordinance  for  the  government  of  the  Northwestern  Territory, 
passed  by  the  Continental  Congress,  July  13,  1787,  which  provided  as 
follows:  "And  in  the  just  preservation  of  rights  and  property,  it  is 
understood  and  declared,  that  no  law  ought  ever  to  be  made  or  have 
force  in  the  said  territory,  that  shall  in  any  manner  whatever  interfere 
with  or  effect  private  contracts  or  engagements,  bona  fide  and  without 
fraud  previously  formed." 

3  Farrand,  The  Records  of  the  Federal  Convention,  vol.  ii,  p.  439. 

4  Farrand,  The  Records  of  the  Federal  Convention,  vol.  ii,  p.  619. 
s  The  Federalist,  Nos.  7  and  44. 

451 


452       THE  AMERICAN  CONSTITUTION     §  184 

for  money,  of  instalment  laws,  and  of  the  occlusions 
of  the  Courts   of  Justice."1 

In  the  North  Carolina  convention  one  of  the  sup- 
porters of  the  Constitution  declared  that,  "The  clause 
refers  merely  to  contracts  between  individuals,"2  but  it 
is  very  probable  that  the  members  of  the  Convention  also 
had  in  mind  the  rather  general  disposition  towards  the 
repudiation  of  public  debts,  and  meant  to  protect  creditors 
of  the  States  as  well  as  creditors  of  private  individuals. 

§184.  Liberal  Construction  by  the  Supreme  Court.  It  was 
not  long  after  the  adoption  of  the  Constitution  that  Ike 
interpretation  of  the  "contract  clause "  began,  and  aroBd 
that  clause  has  developed  a  very  large  and  important  field  of 
unwritten  law.  The  Supreme  Court  has  given  to  the  clause 
a  very  liberal  interpretation.  It  has  not  felt  controlled  by  a 
consideration  of  what  may  have  been  the  particular  evil 
aimed  at  by  the  Convention,  but  has  looked  rather  to  the 
meaning  which  may  fairly  be  given  to  the  general  language 
actually  embodied  in  the  Constitution. 

A  contract  involves  the  conception  of  a  mutual  and  valid 
agreement  with  a  consideration  on  both  sides.  The  con- 
tract clause  does  not,  therefore,  protect  contracts  which  are 
void  for  illegality  or  other  cause,  but  it  does,  quite  as 
obviously,  cover  implied  contracts  as  well  as  those  which 
are  express.  Legal  terminology  includes  the  phrases 
"executory  contracts"  and  "executed  contracts,"  the  for- 
mer used  to  designate  contracts  where  performance  is 
incomplete,  and  the  latter  contracts  which  have  been  fully 
performed.  A  contract  to  sell  in  the  future  is  an  executory 
contract ;  a  present  sale  or  grant  is  an  executed  contract.  It 
would  be  strange  if  a  contractual  right  to  get  title  to  prop  - 
erty  in  the  future  were  protected  by  the  constitutional 

1  Preface  to  Debates  in  the  Convention  of  1 787,  Farrand ,  The  Records 
of  the  Federal  Convention,  vol.  iii,  p.  548.  This  conception  of  the  purpose 
of  the  prohibition  is  corroborated  by  the  short  debate  on  Mr.  King's 
motion  and  by  Luther  Martin's  comments  before  the  Maryland  Legisla- 
ture, Farrand,  The  Records  of  the  Federal  Convention,  vol.  iii,  pp.  214 
and  215.  2 IV  Elliot's  Debates,  191. 


§  1 85        PROTECTION  OF  CONTRACTS          453 

provision  against  impairing  contracts,  while  a  right  to  keep 
title  acquired  under  a  sale  was  not. x  The  possibility  of  such 
an  anomaly  was  early  precluded  by  the  decision  of  the 
Supreme  Court  that  the  contract  clause  applies  as  well  to 
executed  contracts  as  to  those  which  are  executory. 2  Mar- 
riage, however,  is  an  exception  to  this  rule.  Undoubtedly 
marriage  is  a  contract,  but  it  results  in  a  status  whose 
incidents  have  always  been  within  the  control  of  the  State 
and  not  within  the  control  of  the  parties.  The  Supreme 
Courttoas  declared  that  it  is  not  within  the  fair  intendment 
contract  clause  that  the  State  should  be  deprived  of 
l  over  such  status,  and  of  the  right  to  dissolve  it. 3 

§185..  When  the  Obligation  of  a  Contract  Is  Impaired.  It 
is  to  be  noted  that  it  is  the  "obligation  of  contracts"  which 
the  Constitution  declares  is  not  to  be  impaired.  By  the 
obligation  of  a  contract  must  be  meant  the  legal  obligation — 
the  obligation  of  the  parties  to  adhere  to  their  agreement, 
which,  at  the  time  of  contracting,  the  law  recognized  and 
made  enforceable.4  At  first  glance  it  would  seem,  then, 
that  the  provision  against  impairment  would  be  simple  and 
easy  of  application,  but  it  will  be  found  that  the  courts  have 
been  frequently  occupied  with  the  question,  when  is  a  con- 
tract impaired  ? 

Does  every  change  in  the  remedies  open  to  parties  to  a 
contract,  constitute  an  impairment  of  its  obligation?  This 
question  has  been  repeatedly  answered  in  the  negative; 

1  If  this  latter  possibility  had  not  been  held  to  be  met  by  the  contract 
clause  it  would  not  have  been  covered  at  all  as  far  as  the  States  were 
concerned  until  the  later  adoption  of  the  Fourteenth  Amendment  with 
its  prohibition  against  taking  property  without  due  process.  See  chaps. 
28  to  32. 

a  Fletcher  v.  Peck  (1810)  6  Cranch  87,  136.  The  background  of  this 
case  is  most  interestingly  painted  in  Beveridge's  Life  of  John  Marshall, 
vol.  iii,  at  p.  10. 

3  Maynard  v.  Hill  (1888)  125  U.  S.  190,  210.  This  decision  was  pre- 
shadowed  nearly  seventy  years  earlier  by  Chief  Justice  Marshall  in 
Dartmouth  College  v.  Woodward  (1819)  4  Wheaton  518,  629. 

«Sturgis  v.  Crowninshield  (1819)  4  Wheaton  122,  197;  Ogden  v. 
Saunders  (1827)  12  Wheaton  213,  257,  302,  317;  McCracken  v.  Hay  ward 
(1844)  2  Howard  608,  612. 


454       THE  AMERICAN  CONSTITUTION     §  185 

and,  generally  speaking,  it  has  been  held  that  where  the 
statute  deals  only  with  the  remedy,  if  a  reasonably  adequate 
remedy  is  left  the  obligation  of  the  contract  has  not  been 
impaired.  State  legislation  which  attempts  to  make  trans- 
actions usurious  and  void  which  were  not  so  when  entered 
into,  or  which  provides  for  discharging  insolvent  persons 
from  debts  contracted  before  the  passage  of  the  act,  is  uncon- 
stitutional.1 A  state  statute  which  substantially  impairs  a 
creditor's  right  to  satisfy  his  claim  by  execution  levied  u&on 
the  property  of  his  debtor,  is  within  the  constitutional 
prohibition.2  So  is  a  state  statute  which  after  a  sale 
foreclosure  extends  the  time  for  the  redemption  o 
property  so  sold,  since  it  materially  affects  the  contract  right 
of  the, purchaser;3  as  well  as  a  state  statute  which  repeals  a 
former  statute  making  stockholders  in  a  corporation  person- 
ally liable,  so  far  as  it  affects  creditors  existing  at  the  time  of 
the  repeal.4  On  the  other  hand  a  statute  of  a  State  which 
does  away  with  imprisonment  for  debt  is  constitutional, 
though  applied  to  existing  contracts,  for  it  is  held  not  to 
affect  the  nature  or  extent  of  the  obligation,  and  to  leave  an 
entirely  adequate  remedy  against  the  debtor's  property.5 

j^'Sturgis  ».  Crowninshield  (1819)  4  Wheaton  122.  When  a  debtor 
pleads  to  an  action  on  the  debt  a  discharge  under  a  state  insolvency  law 
which  was  in  force  at  the  time  the  contract  was  made  the  law  is  as  fol- 
lows :  ( i )  The  discharge  is  a  good  defense  if  both  contracting  parties  were 
citizens  of  the  State  of  the  discharge,  because  they  may  be  said  to  have 
contracted  in  contemplation  of  the  laws  of  that  State  for  the  enforce- 
ment of  contracts;  (2)  the  discharge  is  a  good  defense  against  a  party  to 
the  insolvency  proceedings;  (3)  but  where  both  contracting  parties  are 
not  citizens  of  the  State  of  the  discharge,  the  discharge  is  not  effective 
against  one  not  a  party  to  the  insolvency  proceedings,  because  the 
parties  cannot  be  said  to  have  contracted  in  contemplation  of  the  laws  of 
the  State  for  the  enforcement  of  contracts,  and  so  the  statute  which 
attempts  to  discharge  one  of  the  parties  to  the  contract,  attempts  to 
impair  the  obligation  of  the  contract  and  is  void.  Ogden  v.  Saunders 
(1827)  12  Wheaton  213. 

3  McCracken  v.  Hay  ward  (1844)  2  Howard  608. 

3  Barritzf.  Beverly  (1896)  163  U.  S.  118. 

« Hawthorne  v.  California  (1864)  2  Wallace  10. 

s  Beers  v.  Haughton  (1835)  9  Peters  329;  and  see  Chief  Justice  Mar- 
shall's earlier  statement  to  the  same  effect  in  Sturges  v.  Crowninshield 


§  185        PROTECTION  OF  CONTRACTS          455 

The  Supreme  Court  of  the  United  States  has  declared  that 
state  legislation  which  exempts  homesteads  from  liability 
for  existing  obligations  is  void,  since  it  substantially  lessens 
the  value  of  such  obligations.1  The  same  arguments  would 
seem  to  apply  to  exemptions  of  personal  property  from 
liability  for  existing  contractual  obligations,2  unless  a  dis- 
tinction be  drawn  upon  the  ground  that  the  usual  exemp- 
tions of  personal  property  withdraw  objects  of  comparatively 
small  value  from  the  reach  of  the  judgment  creditor. 3  State 
statutes  which  stay  execution  on  judgments  in  cases  of  pre- 
existing contracts  are  in  conflict  with  the  contract  clause  of 
the  Federal  Constitution, 4  but  a  statute  shortening  periods 
of  limitation  for  the  bringing  of  actions  is  not  invalid 
though  applying  to  existing  contracts,  unless  it  operates  to 
prevent  an  accrued  right  of  action  being  sued  upon  or 
creates  an  unreasonably  short  period  in  which  action  may  be 
brought. 5  The  Supreme  Court  has  also  held6  that  a  statute, 
which  gives  priority  to  deeds  according  to  the  dates  upon 
which  they  are  recorded,  is  not  unconstitutional,  though 
applying  to  existing  deeds,  which  before  the  statute  would 
take  priority  according  to  their  dates.  The  provisions  of 
such  a  statute  do  not  affect  the  obligations  of  the  parties  to 

(1819)  4  Wheaton  122,  201.  In  New  York  it  has  also  been  held  that  the 
abolition  of  distress  for  rent  does  not  impair  the  obligation  of  existing 
leases,  since  it  leaves  the  obligation  intact,  and,  though  it  takes  away 
one  remedy,  it  leaves  other  remedies  which  are  adequate.  Conkey  v. 
Hart.  (1856)  14  N.  Y.  22. 

1  Gunn  v.  Barry  (1872)  15  Wallace  610;  Edwards  v.  Kearzey  (1877) 
96  U.  S.  595- 

2  See  Justice  Swayne's  opinion  in  Edwards  v.  Kearzey,  supra,  and  the 
state  decisions  supporting  this  view  collected  in  Cooley,  Constitutional 
Limitations  (7th  ed.),  408. 

3  Dictum  in  Bronson  v.  Kinzie  (1843)  i  Howard  311,  315;  concurring 
opinions  of  Justice  Clifford  and  Justice  Hunt  in  Edwards  v.  Kearzey, 
supra,  and  the  state  decisions  collected  in  Cooley,  Constitutional  Limi- 
tations (7th  ed.),  408. 

*  Dictum  in  Edwards  v.  Kearzey,  supra,  and  the  state  decisions  col- 
lected in  Cooley,  Constitutional  Limitations  (7th  ed.),  414. 

s  Wheeler  v.  Jackson  (1890)  137  U.  S.  245,  258;  12  Corpus  Juris  1079. 
6  Jackson  v.  Lamphire  (1830)  3  Peters  280. 


456       THE  AMERICAN  CONSTITUTION     §  186 

deeds,  are  as  available  to  the  elder  as  to  the  younger  grantee, 
and  are  based  upon  sound  policy.1 

§186.  Contracts  to  Which  a  State  Is  a  Party.  So  far  we 
have  considered  contracts  between  individuals,  but  the 
provision  that  no  State  shall  pass  any  law  impairing  the 
obligation  of  contracts  was  early  held  to  apply  as  well  to 
contracts  to  which  a  State  is  a  party.2  Chief  Justice  Mar- 
shall pointed  out  that,  if  contracts  made  with  the  State 
are  to  be  exempted  from  the  operation  of  the  contract  clause, 
"the  exception  must  arise  from  the  character  of  the  con- 
tracting party,  not  from  the  words  which  are  employed," 
and  he  found  no  reason  to  read  into  the  language  of  the 
Constitution  an  exception  which  is  not  there,  in  order  to 
justify  States  in  passing  laws  impairing  the  obligation  of 
their  own  contracts.3  The  constitutional  provision  has 
been  held  as  applicable  to  contracts  between  States  as  to 
those  between  a  State  and  private  individuals.4  The  con- 
stitutional provision  does  not,  however,  give  to  a  party  who 
has  contracted  with  a  State  the  right  to  sue  the  State,  and  a 
statute  which  allows  a  State  to  be  sued  is  not  itself  a  con- 
tract. The  repeal  of  such  a  statute  is,  therefore,  not  an 
impairment  of  the  contract.5  But  even  if  the  privilege  of 
suing  the  State  is  not  given  or  is  withdrawn,  the  contract 

1  State  statutes  which  validate  invalid  or  defective  contracts  do  not 
come  within  the  contract  clause  of  the  Federal  Constitution,  West  Side 
R.  R.  Co.  v.  Pittsburgh  Cons.  Co.  (1911)  219  U.  S.  92,  and  cases  there 
cited ,  neither,  of  course,  do  statutes  in  so  far  as  they  affect  remedies  for 
torts,  Louisiana  v.  New  Orleans  (1883)  109  U.  S.  285.    There  is  no  gen- 
eral prohibition  of  retroactive  state  legislation.    Retroactive  legislation 
may,  however,  come  in  conflict  with  the  due  process  clause  of  the  Four- 
teenth Amendment  if  it  affects  vested  property  rights,  as  will  be  seen 
later. 

2  Fletchers.  Peck  (1810)  6  Cranch  87. 

s  But  the  mere  breach  of  a  contract  by  the  State  will  not  giTTe  the 
federal  courts  jurisdiction  under  the  contract  clause.  St.  Paul  Gas  Light 
Co.  v.  St.  Paul  (1901)  181  U.  S.  142;  City  of  Dawson  v.  Columbia  Avenue 
Saving  Fund  Co.  (1905)  197  U.  S.  178. 

<  Green  v.  Biddle  (1823)  8  Wheaton  I ;  Virginia  v.  West  Virginia  (1870) 
1 1  Wallace  39. 

s  Baltzer  v.  North  Carolina  (1896)  161  U.  S.  240. 


§  1 87        PROTECTION  OF  CONTRACTS          457 

clause  is  still  of  great  value  to  one  who  contracts  with  the 
State,  for  if  the  State  or  one  of  its  officers  brings  judicial 
proceedings  based  upon  a  state  statute  its  unconstitution- 
ally may  be  set  up ;  and  if  an  officer  of  the  State  acts  under 
such  a  statute,  the  question  whether  the  statute  is  uncon- 
stitutional as  impairing  the  obligation  of  the  contract  may 
be  litigated  in  an  action  to  enjoin  the  officer,  or  in  an  action 
against  him  for  damages,  and  if,  in  a  controversy  to  which 
the  state  is  not  a  party,  with  regard  to  a  right  or  property 
secured  by  the  contract  with  the  State,  a  person  relies  upon 
a  statute  subsequent  to  the  contract,  the  question  as  to 
whether  the  statute  impairs  the  obligation  of  the  contract 
may  be  litigated. 

§187.  Dartmouth  College  Case:  Franchises  as  Contracts. 
When  Chief  Justice  Marshall  rendered  his  famous  decision 
in  Dartmouth  College  v.  Woodward*  in  1819,  he  established  a 
doctrine,  which,  as  it  has  been  developed,  and,  as  the  field 
of  its  operation  has  then  been  delimited,  has  occupied 
much  of  the  attention  of  federal  and  state  courts,  and  has, 
besides,  played  a  most  important  part  in  the  law  of  corpor- 
ations and  of  public  utilities.  Dartmouth  College  had  been 
chartered  by  George  Third.  The  New  Hampshire  legis- 
lature by  statute  materially  amended  the  charter.  This 
legislation  was  attacked  by  the  college  as  unconstitutional, 
Daniel  Webster  arguing  the  case  for  the  college.  The  Chief 
Justice  declared : 

"It  can  require  no  argument  to  prove  that  the  circum- 
stances of  this  case  constitute  a  contract.  An  appli- 
cation is  made  to  the  Crown  for  a  charter  to  incorporate  a 
religious  and  literary  institution.  In  the  application 
it  is  stated  that  large  contributions  have  been  made  for  the 
object,  which  will  be  conferred  on  the  corporation  as 
soon  as  it  shall  be  created.  The  charter  is  granted,  and 
on  its  faith  the  property  is  conveyed.  Surely  in  this  trans- 
action every  ingredient  of  a  complete  and  legitimate 
contract  is  to  be  found." 

1  4  Wheaton  518.  Justice  Washington  and  Justice  Story  delivered 
concurring  opinions.  Justice  Duvall  dissented  without  opinion. 


458       THE  AMERICAN  CONSTITUTION     §  187 

After  examining  and  dissenting  from  the  suggestion  that 
the  college  was  a  public  and  not  a  private  corporation,  and 
declaring  that  it  was  essentially  a  private  eleemosynary 
corporation,  the  Chief  Justice  states  his  position  as  to  the 
charter  to  be  this : 

"This  is  plainly  a  contract  to  which  the  donors,  the 
trustees,  and  the  Crown  (to  whose  rights  and  obligations 
New  Hampshire  succeeds)  were  the  original  parties.  It  is 
a  contract  made  on  a  valuable  consideration.  It  is  a 
contract  for  the  security  and  disposition  of  property.  It 
is  a  contract  on  the  faith  of  which  real  and  personl  estate 
has  been  conveyed  to  the  corporation.  It  is  then  a  con- 
tract  within  the  letter  of  the  Constitution,  and  within  its 
spirit  also,  unless  the  fact,  that  the  property  is  vested 
by  the  donors  in  trustees  for  the  promotion  of  religion  and 
education,  for  the  benefit  of  persons  who  are  perpetually 
changing,  though  the  objects  remain  the  same,  shall 
create  a  particular  exception,  taking  this  case  out  of  the 
prohibition  contained  in  the  Constitution." 

This,  upon  examination  was  held  to  be  no  ground  for  taking 
the  charter  contract  out  of  the  protection  of  the  Constitu- 
tion, and  it  was  held  that  the  New  Hampshire  legislation,  in 
materially  altering  the  charter,  did  impair  the  obligation  of 
that  contract. 1 

Although  the  decision  in  the  Dartmouth  College  case 
applied  to  the  charter  of  an  eleemosynary  corporation,  it  has 
subsequently  been  held  to  control  with  regard  to  all  cor- 
porate charters. 2 

But  besides  the  franchise  to  be  a  corporation,  which  is 

1  In  reading  the  opinions  in  the  case  one  feels  throughout  that  the 
object  of  the  court  was  to  protect  property  interests  from  arbitrary 
interference  by  state  legislation.  It  is  interesting  to  speculate  as  to 
whether  the  decision  might  have  been  different  if  the  Fourteenth  Amend- 
ment, which  prohibits  States  from  depriving  any  person  of  property 
without  due  process  (see  chaps.  28  to  32),  had  at  the  time  been  a 
part  of  the  Constitution. 

3  Providence  Bank  v.  Billings  (1830)  4  Peters  514;  Stone  v.  Mississippi 
(1879)  101  U.  S.  814. 


§  1 88        PROTECTION  OF  CONTRACTS          459 

the  subject  matter  of  charter  contracts,  there  are  also 
franchises  to  do  certain  things,  namely  to  exercise  the  power 
of  eminent  domain,  or  to  occupy  public  highways  and 
streets.1  The  grant  and  acceptance  of  one  of  this  latter 
class  of  franchises  may  be  included  in  the  charter  contract, 
or  may  themselves  constitute  a  separate  contract2  pro- 
tected by  the  constitution. 3 

§  1 8 8 .  Grants  Which  A  re  Not  Contracts.  Certain  classes  of 
legislation  granting  powers  and  privileges  which  have  been 
held  not  to  result  in  contracts  should  be  distinguished  from 
the  grant  and  receipt  of  franchises  which  we  have  seen  are 
contractual  in  character.  In  the  first  place  the  grant  of  a 
municipal  charter  is  not  a  contract  between  the  State  and 
the  municipality,  protected  by  the  Federal  Constitution. 

1  The  Supreme  Court  has  thus  defined  a  franchise  in  California   v. 
Pacific  R.  R.  (1888)  127  U.  S.  i,  40:  "Generalized  and  divested  of  the 
special  form  which  it  assumes  under  a  monarchial  government  based  on 
feudal  traditions,  a  franchise  is  a  right,  privilege  or  power  of  public 
concern,  which  ought  not  to  be  exercised  by  private  individuals  at  their 
mere  will  and  pleasure,  but  should  be  reserved  for  public  control  and 
administration,  either  by  the  government  directly,  or  by  public  agents, 
acting  under  such  conditions  and  regulations  as  the  government  may 
impose  in  the  public  interest,  and  for  the  public  security.    Such  rights 
and  powers  must  exist  under  every  form  of  society.    They  are  always 
educed  by  the  laws  and  customs  of  the  community.    Under  our  system, 
their  existence  and  disposal  are  under  the  control  of  the  legislative  de- 
partment of  the  government,  and  they  cannot  be  assumed  or  exercised 
without  legislative  authority."     The  court  continues:  "No  private 
person  can  take  another's  property,  even  for  a  public  use,  without  such 
authority ;  which  is  the  same  as  to  say  that  the  right  of  eminent  domain 
can  only  be  exercised  by  virtue  of  a  legislative  grant.    This  is  a  franchise. 
No  persons  can  make  themselves  a  body  corporate  and  politic  without 
legislative  authority.    Corporate  capacity  is  a  franchise." 

2  Such  franchises  can  only  be  granted  for  a  public  use,  and  part  of  the 
consideration  on  the  part  of  the  grantee  of  the  franchise  is  held  to  be  an 
implied  undertaking  to  use  the  franchise  for  the  benefit  of  the  public, 
which  includes  the  obligation  to  give  reasonably  adequate  service  and 
charge  only   reasonable  rates.      See  C.  K.  Burdick,  "The   Origin  of 
the   Peculiar    Duties   of    Public   Service  Companies,"    g  Col.  L.  Rev., 
514,  616. 

3  City  Ry.  Co.  v.  Citizens  Street  R.  Co.  (1897)  166  U.  S.  557;  Walla 
Walla  v.  Walla  Walla  Water  Co.  (1898)  172  U.  S.  i. 


46o       THE  AMERICAN  CONSTITUTION     §  189 

In  such  a  charter  we  have  merely  a  delegation  of  govern- 
mental powers  which  the  State  may  withdraw  at  will.1 
In  the  second  place  appointment  to  office  is  not  a  contract 
within  the  constitutional  protection. 2 

§189.  Power  of  State  to  Exclude  Itself  by  Contract  from 
Exercise  of  Government  Powers.  Corporate  charters  or 
grants  of  franchises  may  include  in  their  terms  the  grant  of 
other  privileges,  or  immunity  from  the  exercise  of  certain 
governmental  powers  by  the  State,  such,  for  instance  as  the 
grant  of  the  exclusive  right  to  construct  a  bridge,  conduct 
a  ferry,  or  use  the  streets  for  a  given  purpose  within  a 
certain  area,  or  of  the  right  to  charge  certain  designated 
rates  or  fares,  or  of  immunity  from  taxation,  or  of  the  right 
to  carry  on  business  at  a  designated  place.  The  question, 
whether  one  legislature  may,  by  such  a  grant,  because  the 
grant  constitutes  a  contract  protected  by  the  Constitution 
deprive  a  subsequent  legislature  of  its  ordinary  govern- 
mental powers  over  such  matters,  is  of  very  great  moment. 

Some  state  constitutions  expressly  forbid  the  grant  of 
exclusive  privileges,  but  where  this  is  not  the  case  such 
grants  are  held  constitutional  when  granted  to  further 
some  purpose  beneficial  to  the  public. 3  Such  a  grant  is  a 
contract  within  the  meaning  of  the  Constitution  and  so  is 
protected  against  legislation  which  would  impair  it.4  A 
provision  in  a  corporate  charter,  or  in  a  general  law  under 
which  a  business  is  incorporated,  establishing  a  rate  of  tax- 
ation for  such  corporation  has  been  repeatedly  held  to  be 
part  of  the  contract  within  the  meaning  of  the  Federal 

1  Hunter  v.  Pittsburgh  (1907)  207  U.  S.  161;  Pawhuska  v.  Pawhuska 
Oil  Co.  (1919)  250  U.  S.  393. 

3  Butter  v.  Pennsylvania  (1850)  10  Howard  402.  But  salary  which 
has  been  earned  is  within  the  protection  of  the  contract  clause.  Fisk  v. 
Jefferson  Police  Jury  (1885)  116  U.  S.  131. 

3  C.  K.  Burdick,  "The  Origin  of  the   Peculiar    Duties   of   Public 
Service  Companies,"  9  Col.  L.  Rev.,  514,  633;  Cooley,  Constitutional 
Limitations  (7th  ed.),  401. 

4  The  Binghampton  Bridge  (1865)  3  Wallace  51;  Slaughter  House 
Cases  (1872)  16  Wallace  36;  New  Orleans  Gas  Co.  v.  Louisiana  Light 
Co.  (1885)  11511.8.650. 


§§  igo,  I9i  PROTECTION  OF  CONTRACTS        461 

Constitution. I  It  has  also  been  decided,  relying  upon  the 
earlier  cases  with  regard  to  exclusive  privileges,  that  a 
provision  in  a  corporate  charter  or  franchise,  whereby  the 
State  agrees  that  a  public  utility  may  charge  a  certain 
rate  or  fare,  is  contractual,  and  protected  against  im- 
pairment. a 

§190.  Tendency  to  Limit  this  Power.  It  is  obvious  that 
if  there  were  no  limits  to  the  power  of  a  legislature  to  bind 
the  State  by  contract,  it  might  by  this  means  so  far  abro- 
gate the  governmental  powers  of  the  State  as  to  greatly 
embarrass  it  in  its  functions  of  government.  This  fact  has 
been  increasingly  impressing  itself  upon  the  courts  in  recent 
years,  and  certain  important  limitations  upon  the  broad 
doctrine  of  the  inviolability  of  charter  and  franchise  con- 
tracts have  been  developed. 

§191.  Contract  Rights  Subject  to  Eminent  Domain.  In 
the  first  place  such  contract  rights  have  been  declared  to 
be  property  subject,  like  other  property,  to  the  right  of  the 
State  to  take  upon  the  payment  of  reasonable  compensation, 
under  its  power  of  eminent  domain.3  This  was  early 
decided  by  the  Supreme  Court  in  the  case  of  an  exclusive 
grant  of  the  right  to  construct  a  bridge  within  a  certain 
area. 4  It  is  declared  that  every  contract,  whether  between 
individuals  or  between  a  natural  or  artificial  person  and  the 
State,  is  made  subject  to  this  power,  and  that  the  exercise  of 
this  power  does  not,  therefore,  impair  the  obligation  of  the 
contract.  So  a  franchise  contract  for  the  supplying  of 
water  in  a  municipality,  with  express  provisions  as  to  the 
rates  which  are  to  be  paid  by  the  municipality  for  water 
used  by  it,  may  be  condemned  by  the  municipality  under 

1  New  Jersey  v.  Wilson  (1812)  7  Cranch  164;  Piqua  Branch  of  State 
Bank  of  Ohio  v.  Knoop  (1853)  16  Howard  369;  Home  of  the  Friendless  v. 
Rouse  (1869)  8  Wallace  430;  New  Orleans  v.  Houston  (1886)  119  U.  S. 
265. 

2  Freeport  Water  Co.  t;.  Freeport  (1901)  180  U.  S.  587;  Vicksburg  v. 
Vicksburg  Waterworks  Co.  (1907)  206  U.  S.  496. 

*  This  power  will  be  more  fully  discussed  in  connection  with  due 
process,  see  Chap.  31. 

4  West  River  Bridge  Co.  v.  Dix  (1848)  6  Howard  507. 


462  THE  AMERICAN  CONSTITUTION  §§  192, 193 

the  power  of  eminent  domain.1  It  must  be  equally  true 
that  a  contractual  immunity  from  taxation  may  be  con- 
demned. In  such  cases  the  obligation  of  the  contract  is  not 
impaired,  but  its  value  as  property  is  recognized,  and  as 
property  it  is  acquired  by  the  State  under  the  power  of 
eminent  domain,  which  is  classed  as  one  of  the  State's 
inherent  and  necessary  powers  of  sovereignty. 

§192.  Strict  Construction  of  Contracts  in  Favor  of  the 
Public.  Again  it  is  held  that  any  grant  by  a  State  is  to  be 
strictly  construed  against  the  grantee  and  in  favor  of  the 
public.  From  this  it  results  that  in  the  case  of  a  charter  or 
franchise  contract,  when  it  is  claimed  that  the  State  has 
contracted  away  the  right  to  exercise  a  governmental  power, 
this  must  clearly  appear  from  the  contract  itself,  and  is  not 
to  be  implied.  The  leading  case  to  this  effect  is  Charles 
River  Bridge  v.  Warren  Bridge.2  A  franchise  to  build  a 
bridge  between  Cambridge  and  Boston  and  receive  tolls  for 
seventy  years  was  granted  to  the  proprietors  of  the  Charles 
River  Bridge.  During  the  period  of  this  franchise  a  fran- 
chise to  build  another  bridge  between  the  same  places  was 
granted  to  the  proprietors  of  the  Warren  Bridge,  which 
bridge  was  to  become  free  within  six  years,  thus  destroying 
the  value  of  the  Charles  River  Bridge  franchise.  It  was 
claimed  by  the  proprietors  of  this  bridge  that  an  exclusive 
grant  to  them  was  to  be  implied,  but  the  majority  of  the 
court  emphatically  laid  down  the  principle  above  stated. 3 

§193.  Municipalities  Have  No  Inherent  Power  to  Limit 
State  Action  by  Contract.  A  large  number  of  the  cases  in 
which  it  has  been  claimed  that  a  public  utility  has  acquired 
by  contract  the  right  to  charge  certain  fares  or  rates,  and 
that  the  State  has,  therefore,  contracted  away  its  right  of 
rate  fixing,  are  cases  where  the  contract  is  embodied  in  a 
franchise  granted  by  a  municipality  to  use  its  streets.  In 
such  a  case  there  is  first  the  question  as  to  whether  the 

1  Long  Island  Water  Supply  Co.  v.  Brooklyn  (1896)  166  U.  S.  685. 
3  (1837)  ii  Peters  420. 

3  See  also  Troy  Un.  R.  R.  Co.,  v.  Mealy  (1920)  254  U.  S.  47,  with 
regard  to  taxation. 


§  193        PROTECTION  OF  CONTRACTS          463 

franchise  does  clearly  embody  a  contractual  surrender  of  the 
rate  fixing  power,1  and  secondly,  if  such  a  contractual 
surrender  appears,  it  must  be  determined  whether  the 
municipality  had  power  to  make  such  a  contract.  The 
Supreme  Court  of  the  United  States  has  declared  that  a 
municipality  not  only  has  no  inherent  or  implied  power 
either  to  regulate  rates  or  to  contract  away  the  State's 
power  of  rate  regulation,  but  that  the  delegation  of  author- 
ity to  the  municipality  to  make  such  a  contract  must  be 
perfectly  clear. 2  In  some  cases  the  power  to  contract  as  to 
rates  has  been  found  clearly  vested  in  the  municipality,  and 
the  utility  has,  therefore,  been  protected  in  its  contract 
rates3;  but  in  others  that  clear  power  has  not  been  found, 
and  the  contract  has,  therefore,  been  held  to  be  no  pro- 
tection against  the  exercise  of  the  police  power  in  the  form 
of  rate  regulation.4  An  examination  of  these  cases  makes 
two  things  clear.  The  first  is  that  there  is  a  strong  pre- 

1  In  Southern  Pacific  Co.  v.  Campbell  (1913)  230  U.  S.  537,  it  appeared 
that  the  company  was  incorporated  under  a  law  giving  it  "power  to 
collect  and  receive  such  tolls  or  freight  for  transportation  of  persons  or 
property  thereon  as  it  may  prescribe."    It  was  held  that  this  provision 
was  merely  an  authorization  to  collect  reasonable  tolls,  and  gave  no 
greater  power  than  the  company  would  have  had  without  it,  and  was 
not  to  be  interpreted  as  a  contractual  surrender  by  the  State  of  its  power 
to  regulate  rates.    And  see  Stone  v  Farmers'  Loan  and  Trust  Co.  (1886) 
ii6U.  S.  307,  330. 

2  Freeport  Water  Co.  v.  Freeport  (1901)  180  U.  S.  587;  Detroit  v. 
Detroit  Citizens  Ry.  (1902)  184  U.  S.  368;  Cleveland  v.  Cleveland  City 
Ry.  (1904)   194  U.  S.  517;  Vicksburg  v.  Vicksburg  Waterworks  Co. 
(1907)  206  U.  S.  496;  Home  Telephone  Co.  v.  Los  Angeles  (1908)  211 
U.  S.  265,  (in  which  authority  given  to  a  city  to  fix  rates  was  held  not 
to  give  the  city  power  to  bind  the  State  by  a  contract  as  to  rates) :  Puget 
Sound  Traction  Co.  v.  Reynolds  (1917)  244  U.  S.  574;  City  of  Englewood 
v.  Denver  &  St.  P.  Co.  (1919)  248  U.  S.  294. 

3  Detroit  v.  Detroit  Citizens  Ry.,  supra;  Cleveland  v.  Cleveland  City 
Ry.,   supra;   Vicksburg  v.  Vicksburg  WaterworksCo.,  supra;  Detroit 
United  Ry.  v.  Michigan  (1916)  242  U.  S.  283. 

*  Freeport  Water  Co.  v.  Freeport,  supra;  Home  Telephone  Co.  v.  Los 
Angeles,  supra;  Milwaukee  Electric  Ry.  v.  Railroad  Commission  (1915) 
238  U.  S.  174;  Puget  Sound  Traction  Co.  v.  Reynolds,  supra;  City  of 
Englewood  v.  Denver  &  S.  P.  Ry.,  supra. 


464       THE  AMERICAN  CONSTITUTION     §  194 

sumption  against  the  surrender  by  contract  of  governmental 
powers  over  rates,  and  a  consequent  strong  presumption 
against  the  delegation  by  the  State  to  the  municipality  of 
the  authority  to  abrogate  such  powers  by  contract.  The 
second  is  that,  although  when  a  case  is  presented  to  the 
Supreme  Court  of  the  United  States  under  the  contract 
clause  of  the  Constitution,  it  will  itself  determine  whether 
there  is  a  contract,  as  well  as  whether  there  has  been  a 
breach  of  it,  that  court,  nevertheless,  in  determining  whether 
there  is  a  contract,  will  give  much  weight  to  decisions  of  the 
highest  court  of  the  State  on  the  question  whether  the 
statutes  of  the  State  do  in  fact  delegate  to  the  municipality 
power  to  contract  as  to  rates.  A  most  striking  example  of 
this  policy  is  found  in  Freeport  Water  Company  v.  Freeport, r 
where  the  majority  of  the  court,  following  the  interpretation 
put  upon  the  state  statute  by  the  Illinois  court,  held  that 
there  had  been  no  delegation.  Also  in  the  case  of  Vicksburg 
v.  Vicksburg  Waterworks  Company,2  the  Supreme  Court 
examined  with  care  the  Mississippi  cases  in  which  the  state 
court  had  interpreted  the  statutes  of  that  State,  and  followed 
its  interpretation  to  the  effect  that  there  had  been  legislative 
delegation  of  authority  to  make  rate  contracts  with  utilities. 
§  194.  Certain  Police  Powers  Cannot  be  Contracted  Away, 
But  further  and  most  important  the  Supreme  Court  has 
held  that  there  are  certain  "police  powers"  which  a  State 
cannot  contract  away,  and  that,  therefore,  legislation  in 
pursuance  of  such  powers  does  not  impair  the  obligation  of  a 
contract  to  which  the  State  was  a  party,  though  the  legis- 
lation is  contrary  to  the  contractual  agreement.  Those 
police  powers,  which  it  is  universally  agreed  cannot  be 
surrendered,  are  such  as  are  exercised  for  the  protection  of 
the  public  health,  safety,  and  morals.  A  State  may  provide 
for  the  suppression  of  nuisances,  or  pass  other  legislation  in 
the  interest  of  public  health,  even  though  this  will  infringe 
franchise  privileges  and  rights.3  Franchises  for  the  manu- 

1  Supra.  *  Supra. 

a  Fertilizing  Co.  v.  Hyde  Park  (1878)  97  U.  S.  659;  Butchers'  Union 
Co.  v.  Crescent  City  Co.  (1883)  in  U.  S.  746. 


§  195        PROTECTION  OF  CONTRACTS          465 

facture  of  alcoholic  beverages,  or  for  the  conduct  of  lotteries, 
do  not  prevent  later  legislation,  which  may  be  justified  as 
protective  of  public  morals.1  Legislation  requiring  rail- 
roads to  carry  their  tracks  over  or  under  highways,  or  to  go 
to  other  expense  or  inconvenience  for  the  safety  of  the  public 
is  not  unconstitutional,  though  immunity  from  such  legis- 
lation may  have  been  contracted  for. 2 

§  195.  The  Same  Principles  Should  Apply  to  Contracts  as 
to  Rates  and  Taxes.  But  do  these  cases  mark  the  limits  of 
that  police  power  the  exercise  of  which  cannot  be  sur- 
rendered by  the  State?  Blackstone  speaks  of  "offences 
against  the  public  police  and  economy,"  saying: 

"By  the  public  police  and  economy  I  mean  the  due 
regulation  and  domestic  order  of  the  kingdom,  whereby 
the  individuals  of  the  state,  like  members  of  a  well- 
governed  family,  are  bound  to  conform  their  general 
behavior  to  the  rules  of  propriety,  good  neighborhood,  and 
good  manners,  and  to  be  decent,  industrious,  and  not 
offensive  in  their  respective  stations."3 

In  a  comparatively  early  case  Chief  Justice 'Taney  said: 

"But  what  are  the  police  powers  of  the  State?  They 
are  nothing  more  or  less  than  the  powers  of  government 
inherent  in  every  sovereignty  to  the  extent  of  its  domin- 
ions. And  whether  a  State  passes  a  quarantine  law,  or  a 
law  to  punish  offenses,  or  to  establish  courts  of  justice,  or 
requiring  certain  instruments  to  be  recorded,  or  to 
regulate  commerce  within  its  own  limits,  in  every  case 
it  exercises  the  same  power ;  that  is  to  say,  the  power  of 
sovereignty,  the  power  to  govern  men  and  things  within 
the  limits  of  its  dominion.  It  is  by  virtue  of  this  author- 
ity that  it  legislates."4 

1  Beer  Co.  v.  Massachusetts  (1877)  97  U.  S.  25;  Stone  v.  Mississippi 
(1879)  ioi  U.  S.  814. 

'Chicago  B.  &  Q.  Ry.  v.  Nebraska  (1898)  170  U.  S.  57;  Northern 
Pacific  Ry.  v.  Duluth  (1908)  208  U.  S.  583;  Atlantic  Coast  Line  Ry.  v. 
Goldsboro  (1914)  232  U.  S.  548. 

3 IV  Black.  Comm.,  162.  4  License  Cases  (1847)  5  Howard  504,  583. 
30 


466       THE  AMERICAN  CONSTITUTION     §  195 

And  a  few  years  later  Chief  Justice  Waite  said:1 

' '  Under  these  [the  police]  powers  the  government  regu- 
lates the  conduct  of  its  citizens  one  towards  another  and 
the  manner  in  which  each  shall  use  his  own  property, 
when  such  regulation  becomes  necessary  for  the  public 
good." 

Blackstone  is  speaking  of  a  system  of  rules  for  the  conduct  of 
society  rather  than  of  a  governmental  power.  Chief  Justice 
Taney  is  speaking  of  a  governmental  power,  but  would  seem 
to  use  the  term  "police  power  "  as  substantially  synonymous 
with  the  power  to  legislate.  Chief  Justice  Waite,  however, 
applies  the  term  to  that  sphere  of  legislative  power  which 
has  to  do  with  the  control  of  the  conduct  of  certain  in- 
dividuals for  the  benefit  of  society  as  a  whole.  It  is  in  this 
sense  that  it  has  come  to  be  used  in  American  constitutional 
law.  In  Freund's  Police  Power2  it  is  said  that 

"it  is  possible  to  evolve  at  least  two  main  attributes  or 
characteristics  which  differentiate  the  police  power ;  it  aims 
directly  to  secure  and  promote  the  public  welfare,  and  it 
does  so  by  restraint  and  compulsion."3 

The  legislative  power  to  fix  rates  of  public  utilities  is  recog- 
nized as  part  of  the  police  power,  being  the  power  to  enforce 
the  liability  which  rests  upon  public  utilities  to  serve  at 
reasonable  rates.4  This  is  a  power  distinctly  for  the  pro- 
tection of  the  public,  and  affecting  vitally  their  welfare. 
Yet  the  Supreme  Court  has,  as  we  have  seen,  declared  that 
the  State  may  contract  away  this  power  for  a  fixed  period, 
and  may  authorize  a  municipal  corporation  to  do  so,  and 
that  legislation  impairing  such  a  contract  is  in  conflict  with 
the  Constitution  and  void.  The  taxing  power  is  not  a  part 

1  Munn  v.  Illinois  (1876)  94  U.  S.  1 13.  2  Sec.  3. 

3  The  limits  of  the  police  power  have  been  gradually  pricked  out  by 
decisions  under  the  Fourteenth  Amendment.  See  discussion,  sees.  270 
to  274. 

*  Munn  v.  Illinois  (1876)  94  U.  S.  113;  Northern  Pacific  Ry.  v.  North 
Dakota  (1915)  236  U.  S.  585. 


§  195        PROTECTION  OF  CONTRACTS          467 

of  the  police  power,  nor  is  it  a  power  to  exercise  which  a 
government  is  primarily  created.  Yet  it  is  a  power  essential 
to  the  performance  of  the  primary  governmental  powers. 
Nevertheless,  as  we  have  seen,  it  is  held  that  the  State  may  by 
contract  surrender  the  exercise  of  that  power,  and  that  a  tax 
laid  in  conflict  with  such  a  contract  is  void.  The  question 
as  to  what  governmental  powers  can  be  abdicated  by  con- 
tract, even  temporarily,  is,  of  course,  merely  a  question  of 
public  policy,  where  it  is  not  controlled  by  the  provisions  of 
state  constitutions. l  It  is  a  question  of  what  powers  need 
to  be  so  continually  available  that  public  policy  imper- 
atively forbids  their  abdication  by  contract.  In  view  of  the 
continual  necessity  and  constant  practice  of  governmental 
regulation  of  rates,  and  the  essential  character  of  the  taxing 
power,  it  seems  regrettable  that  the  Supreme  Court  of  the 
United  States  gave  currency  to  the  doctrine  that  a  State 
may  contract  away  these  powers. 

As  a  matter  of  fact  a  very  strong  dissent  was  entered  at 
the  very  outset  in  the  matter  of  contractual  surrender  of  the 

1  If  the  constitution  of  the  State  expressly  forbids  the  State  to  con- 
tract away  its  power  to  regulate  rates,  an  attempt  to  surrender  by  con- 
tract such  right  would  be  void,  and  later  legislation  in  conflict  with  such 
contract  would  be  entirely  constitutional.  Detroit  v.  Detroit  Citizens 
Street  Ry.  Co.  (1902)  184  U.  S.  368,  382.  There  are  such  provisions  in 
the  constitutions  of  Missouri  (art.  12,  sec.  5),  of  Oklahoma  (art.  18, 
sec.  7)  and  of  Pennsylvania  (art.  16,  sec.  3).  It  is  also  probable  that,  in 
States  which  have,  without  express  constitutional  provisions,  declared 
through  their  highest  courts  that  it  is  unconstitutional  for  the  State  to 
abdicate  by  contract  its  fundamental  police  power  to  regulate  rates, 
such  a  contract  would  be  held  void  by  the  Supreme  Court  of  the  United 
States,  and  so  not  impaired  by  subsequent  rate  regulation.  It  was  said 
in  Freeport  Water  Co.  v.  Freeport  (1901)  180  U.  S.  587,  593:  "We  do 
not  mean  to  say  that  if  it  was  the  declared  policy  of  the  State  that  the 
power  of  alienation  of  a  governmental  function  did  not  exist,  a  subse- 
quent asserted  contract  would  not  be  controlled  by  such  policy."  There 
are  such  judicial  declarations  in  several  of  our  States.  City  of  Tampa  v. 
Tampa  W.W.  (1903)  45  Fla.  600;  Portland:;.  Public  Serv.  Comm.  (1918, 
Ore.)  173  Pac.  1178;  Salt  Lake  City  v.  Utah  Light  Co.  (1918,  Utah)  173 
Pac.  556;  Georgia  Ry.  &  P.  Co.  v.  Railroad  Commission  {1919,  Ga.)  98 
S.  E.  696;  Memphis  v.  Eulve  (1919,  Term.)  214  S.  W.  71 ;  City  of  Chicago 
v.  O'Connell  (1917)  278  111.  591. 


468        THE  AMERICAN  CONSTITUTION     §  195 

taxing  power.  In  the  case  in  which  the  Supreme  Court 
recognized  the  power  of  a  state  legislature  to  make  an 
irrevocable  contract  limiting  its  taxing  power  Justice  Catron, 
dissenting,  declared  the  correct  view  to  be1 : 

"That  according  to  the  constitutions  of  all  the  States 
of  the  Union,  and  even  of  the  British  Parliament,  the 
sovereign  political  power  is  not  the  subject  of  contract 
so  as  to  be  vested  in  an  unrepealable  charter  of  incor- 
poration, and  taken  away  from,  and  placed  beyond  the 
reach  of,  future  legislatures;  that  the  taxing  power  is  a 
political  power  of  the  highest  class,  and  each  successive 
legislature  having  vested  in  it,  unimpaired,  all  the  politi- 
cal powers  previous  legislatures  had,  is  authorized  to 
impose  taxes  on  all  property  in  the  State  that  its  con- 
stitution does  not  exempt."2 

Some  years  later  Justice  Miller  dissenting  in  a  similar  case 
said1: 

"We  do  not  believe  that  any  legislative  body,  sitting 
under  a  state  constitution  of  the  usual  character,  has  a 
right  to  sell,  to  give,  or  to  bargain  away  forever  the  taxing 
power  of  the  State.  This  is  a  power  which  in  modern 
political  societies,  is  absolutely  necessary  to  the  con- 
tinued existence  of  every  such  society.  .  .  .  To  hold, 
then,  that  any  one  of  the  annual  legislatures  can  by  con- 
tract, deprive  the  State  forever  of  the  power  of  taxation, 
is  to  hold  that  they  can  destroy  the  government  which 
they  are  appointed  to  serve,  and  that  their  action  in  that 
regard  is  strictly  lawful." 

The  doctrine  of  the  prevailing  opinions  in  these  cases 
has  however,  been  repeatedly  followed,  though  often 
criticized. 

1  Peoria  Branch  of  the  State  Bank  of  Ohio  v.  Knoop  (1853)  16  Howard 
369,  404.    Justice  Daniel  and  Justice  Campbell  also  dissented. 

2  Washington  University  v.  Rouse  (1869)  8  Wallace  439,  443.     Chief 
Justice  Chase  and  Justice  Field  concurred  in  this  dissent. 


§  196        PROTECTION  OF  CONTRACTS          469 

§196.  Broader  Legislative  Power  Indicated  by  Recent 
Cases  under  the  Contract  Clause.  Until  the  latter  part  of  the 
nineteenth  century  the  public  mind  was  suspicious  of 
governmental  encroachment,  hostile  to  governmental 
regulation,  and  bent  upon  the  preservation  of  the  largest 
possible  degree  of  individual  freedom.  This  is  reflected  in 
the  strictness  with  which  the  Supreme  Court  interpreted,  as 
against  the  States,  the  constitutional  restrictions  upon  state 
action.  But  during  the  last  generation  the  pendulum  has 
swung,  and  there  has  been  an  increasing  demand  for  social 
legislation  and  for  regulation  of  big  business,  and  par- 
ticularly of  public  utilities.  Gradually,  responsive  to  this 
change  in  the  attitude  of  the  public  mind,  the  opinions  of 
the  Supreme  Court  of  the  United  States  and  our  other 
judicial  tribunals  have  in  recent  years  shown  a  change  of 
emphasis,  as  a  result  of  which  the  constitutional  limitations 
upon  state  action  have  been  liberally  construed  in  favor 
of  a  wide  power  of  governmental  control.  This  tendency 
is  particularly  evident  in  decisions  under  the  Fourteenth 
Amendment,  as  we  shall  see  later,  but  it  is  also  becoming 
apparent  in  connection  with  the  contract  clause  of  the 
Constitution.  A  striking  case  in  this  connection  is  Chicago 
and  Alton  Railroad  Company  v.  Tranbarger.1  A  statute  of 
Missouri  passed  in  1 907  required  railroads  to  make  suitable 
openings  in  embankments  on  their  ' '  rights  of  way ' '  for  water 
drainage.  The  company  in  question  had  constructed  its 
embankment  long  before  the  passage  of  this  statute,  and 
the  company  contended  that  the  statute  impaired  its  rights 
secured  from  the  charter  contract,  and  took  its  property 
without  due  process.  After  consideration  of  other  points 
the  court  said2: 

"But  a  more  satisfactory  answer  to  the  argument  under 
the  contract  clause,  and  one  which  at  the  same  time 
refutes  the  contention  of  plaintiff  in  error  under  the  due 
process  clause,  is  that  the  statute  in  question  was  passed 
under  the  police  power  of  the  State  for  the  general  benefit 
1  (1915)  238  U.  S.  67.  'Ibid.,  76. 


470       THE  AMERICAN  CONSTITUTION     §  196 

of  the  community  at  large  and  for  the  purpose  of  prevent- 
ing unnecessary  and  wide-spread  injury  to  property. 

"It  is  established  by  repeated  decisions  of  this  court 
that  neither  of  these  provisions  of  the  Federal  Consti- 
tution has  the  effect  of  overriding  the  power  of  the  State 
to  establish  all  regulations  reasonably  necessary  to  secure 
the  health,  safety,  or  general  welfare  of  the  community; 
that  this  power  can  neither  be  abdicated  nor  bargained 
away,  and  is  inalienable  even  by  express  grant ;  and  that 
all  contract  and  property  rights  are  held  subject  to  its  fair 
exercise.  Atlantic  Coast  Line  v.  Goldsboro,  232  U.  S. 
548>  558,  and  cases  cited.  And  it  is  also  settled  that  the 
police  power  embraces  regulations  designed  to  promote  the 
public  convenience  or  the  general  welfare  and  prosperity, 
as  well  as  those  in  the  interest  of  public  health,  morals, 
or  safety.  .  .  . 

"We  deem  it  very  clear  that  the  act  under  consideration 
is  a  legitimate  exercise  of  the  police  power,  and  not  in  any 
proper  sense  a  taking  of  the  property  of  plaintiff  in  error." 

This  language  is  very  important.  It  is  not  only  the  police 
power,  which  has  to  do  with  safety,  health,  and  morals, 
which  cannot  be  surrendered  by  contract,  but  "the  power  of 
the  State  to  establish  all  regulations  reasonably  necessary 
to  secure  the  health,  safety,  and  general  welfare*  of  the  com- 
munity .  .  .  inalienable  even  by  express  grant."  The 
court  concludes  that  the  power  to  protect  land  from  being 
flooded  is  so  necessary  for  the  "general  welfare  of  the 
community"  that  it  cannot  be  abridged  even  by  express 
grant.  But  is  not  the  police  power  to  regulate  the  rates 
of  public  utilities,  in  order  to  prevent  unreasonable  rates 
and  discriminatory  practices  much  more  important  to  the 
"  general  welfare  of  the  community,"  than  the  police  power 
to  prevent  the  flooding  of  one  person's  land  by  the  use  made 
of  their  lands  by  others  ?  One  is  led  to  hope  that  perhaps 
it  is  not  yet  too  late  for  the  Supreme  Court  to  reconsider 
its  decisions  that  a  State  may  by  charter  or  franchise  con- 

1  The  italics  are  introduced  by  the  present  writer. 


§  197        PROTECTION  OF  CONTRACTS          471 

tract  surrender  its  police  power  to  regulate  rates  and  fares 
of  public  utilities.  * 

This  hope  is  given  support  by  the  summary  way  in  which 
Chief  Justice  White,  speaking  for  a  unanimous  court  in  a 
recent  case,  dealt  with  the  contention  that  certain  con- 
demnation proceedings  were  unconstitutional  because  the 
State  had  previously  contracted  not  to  condemn  the 
property  in  question.  The  court  said2: 

"There  can  be  now,  in  view  of  the  many  decisions  of  this 
court  on  the  subject,  no  room  for  challenging  the  general 
proposition  that  the  States  cannot  by  virtue  of  the  con- 
tract clause  be  held  to  have  divested  themselves  by  con- 
tract of  the  right  to  exert  their  governmental  authority  in 
matters  which  from  their  very  nature  so  concern  that 
authority  that  to  restrain  its  exercise  by  contract  would 
be  a  renunciation  of  the  power  to  legislate  for  the  preser- 
vation of  society  or  to  secure  the  performance  of  essential 
governmental  duties." 

§197.  Contracts  Between  Individuals  are  Made  Subject  to 
the  Police  Power.  Are  contracts  between  private  individ- 
uals made  subject  to  the  police  power,  so  that  the  exercise 
of  that  power,  though  it  interferes  with  their  operation  or 
enforcement,  does  not  impair  their  obligation?  As  early  as 

1  As  a  result  of  the  great  increase  of  cost  of  service  resulting  from 
conditions  incident  to  the  World  War,  there  was  during  the  years  1914 
to  1920  a  very  interesting  reversal  of  parties  in  the  efforts  to  get  away 
from  franchise  and  charter  rates.  During  those  years  the  utilities  .sought 
legislation  increasing  such  rates,  and  were  often  opposed  by  municipali- 
ties with  which  the  utilities  had  franchise  contracts,  on  the  ground  that 
such  legislation  would  impair  contractual  obligations.  The  answer  has 
been  that  the  municipality  in  making  such  a  contract  acts  for  the  State, 
and  that,  therefore,  the  utility  and  the  State  are  the  contracting  parties, 
and  for  them  to  change  the  contract  by  mutual  agreement  is  no  impair- 
ment of  the  obligation  of  the  contract.  See  Worcester  v.  Street  Ry.  Co. 
(1905)  196  U.  S.  539,  and  the  consideration  of  the  subject  in  an  article 
entitled  "Regulating  Franchise  Rates,"  by  C.  K.  Burdick,  29  Yale  Law 
Journal,  589,  where  the  state  decisions  will  be  found. 

3  Pennsylvania  Hospital  v.  Philadelphia  (1917)  245  U.  S.  20,  23. 


472        THE  AMERICAN  CONSTITUTION     §  197 

1 870,  in  the  Legal  Tender  Cases,  x  the  Supreme  Court  spoke 
as  follows  on  this  subject : 

"If,  then,  the  legal  tender  acts  were  justly  chargeable 
with  impairing  contract  obligations,  they  would  not,  for 
that  reason,  be  forbidden,  unless  a  different  rule  is  to  be 
applied  to  them  from  that  which  has  hitherto  prevailed 
in  the  construction  of  other  powers  granted  by  the  funda- 
mental law.  But,  as  already  intimated,  the  objection 
misapprehends  the  nature  and  extent  of  the  contract 
obligation  spoken  of  in  the  Constitution.  As  in  a  state  of 
civil  society  property  of  a  citizen  or  subject  is  ownership 
subject  to  the  lawful  demands  of  the  sovereign,  so  con- 
tracts must  be  understood  as  made  in  reference  to  the 
possible  exercise  of  the  rightful  authority  of  the  govern- 
ment, and  no  obligation  of  a  contract  can  extend  to  the 
defeat  of  legitimate  governmental  authority." 

It  is  quite  true  that  the  court  was  dealing  with  Congres- 
sional legislation,  and  that  such  legislation  which  impairs 
the  obligation  of  contracts  can  only  be  attacked  under  the 
due  process  clause  of  the  Fifth  Amendment,  since  the 
express  prohibition  of  legislation  impairing  the  obligation  of 
contracts  in  the  body  of  the  Constitution  is  only  by  its  terms 
a  limitation  upon  state  action.  However,  the  language  of 
the  court  in  the  paragraph  quoted  above  is  sweeping,  and 
intended  to  apply  to  state  governments  as  well  as  to  the 
government  of  the  United  States,  and  obviously  intended  as 
an  interpretation  of  the  constitutional  clause  against  the 
impairment  of  contracts. 

In  Manigault  v.  Springs2  the  same  principle  which  was 
laid  down  in  the  Legal  Tender  Cases,  supra,  was  directly 
applied  to  state  legislation  which  relieved  a  party  from  his 
performance  of  a  contract  previously  entered  into.  Defend- 
ants had  contracted  to  remove  a  dam  across  a  stream  and  to 
keep  the  stream  open,  thus  giving  plaintiff  access  by  water 
to  his  land,  and  making  the  cultivation  of  his  land  more 
advantageous.  The  dam  was  removed,  but  the  state  legis- 

1 12  Wallace  457,  550.  2  (1905)  199  U.  S.  472. 


§  197        PROTECTION  OF  CONTRACTS          473 

lature  later  authorized  defendant  to  construct  another  dam 
for  the  purpose  of  reclaiming  low  and  swampy  land.  The 
court  held  that  there  was  a  legitimate  exercise  of  the  police 
power,  and  declared1: 

"It  is  the  settled  law  of  this  court  that  the  interdiction 
of  statutes  impairing  the  obligation  of  contracts  does  not 
prevent  the  State  from  exercising  such  powers  as  are 
vested  in  it  for  the  promotion  of  the  common  weal,  or  are 
necessary  for  the  general  good  of  the  public,  though  con- 
tracts previously  entered  into  between  individuals  may 
thereby  be  affected.  This  power,  which  in  its  various 
ramifications  is  known  as  the  police  power,  is  an  exercise 
of  the  sovereign  right  of  the  Government  to  protect  the 
lives,  health,  morals,  comfort  and  general  welfare  of  the 
people,  and  is  paramount  to  any  rights  under  contracts 
between  individuals.  Familiar  instances  of  this  are 
where  parties  enter  into  contracts,  perfectly  lawful  at 
the  time,  to  sell  liquor,  operate  a  brewery  or  distillery,  or 
carry  on  a  lottery,  all  of  which  are  subject  to  impairment 
by  a  change  of  policy  on  the  part  of  the  State,  prohibiting 
the  establishment  or  continuance  of  such  traffic;  in  other 
words,  that  parties  by  entering  into  contracts  may  not 
estop  the  legislature  from  enacting  laws  intended  for  the 
public  good." 

This  view,  that  all  contracts  between  individuals  are 
made  subject  to  the  police  power  of  the  State,  and  that 
legislation  enacted  in  the  reasonable  exercise  of  that  power, 
though  it  interferes  with  or  excuses  the  performance  of 
contracts,  does  not  unconstitutionally  impair  their  obli- 
gation, has  been  constantly  reiterated  by  the  United 
States  Supreme  Court.2 

1  Ibid.,  480. 

3  Hudson  County  Water  Co.  v.  McCarter  (1908)  209  U.  S.  349,  357; 
Atlantic  Coast  Line  R.  R.  Co.  v.  Goldsboro  (1913)  232  U.  S.  548,  558; 
Union  Dry  Goods  Co.  v.  Georgia  Pub.  Ser.  Corp.  (1919)  248  U.  S.  372; 
Producers  Transp.  Co.  v.  Railroad  Comm.  of  California  (1920)  251  U.  S. 
228;  Marcus  Brown  Holding  Co.  v.  Feldman  (1921)  41  Sup.  Ct.,  R.  465. 


474       THE  AMERICAN  CONSTITUTION     §  198 

§198.  Reservation  of  Right  to  Alter  Charter  Contracts. 
When  it  was  decided  in  the  Dartmouth  College  case  that  a 
corporate  charter  is  a  contract  whose  obligations  are  pro- 
tected against  impairment  by  the  Federal  Constitution,  it 
was  suggested  that  this  limitation  upon  state  power  might  be 
obviated  by  granting  the  charter  subject  to  the  right  to 
amend,  alter,  or  repeal.1  If  the  parties  agree  in  their  con- 
tract that  the  State  may  exercise  such  power,  its  exercise  is 
obviously  no  impairment  of  the  contractual  obligations. 
This  suggestion  has  been  very  generally  acted  upon  in  the 
grant  of  charters,  but  not  so  generally  in  the  grant  of  fran- 
chises by  municipalities.  It  has  sometimes  been  intimated 
that  property  rights  might  be  constitutionally  affected 
under  the  power  reserved  to  alter  and  amend  charters  when 
they  could  not  be  so  affected  under  the  police  power. 2  This 
seems  incorrect.  It  would  seem  that  all  that  is  effected  by 
reserving  such  power  is  to  put  the  parties  in  the  same 
position  as  if  there  were  no  constitutional  provision  prohibit- 
ing the  impairment  of  the  obligation  of  contracts.  The 
reservation  of  such  power  still  leaves  the  due  process  clause 
of  the  Fourteenth  Amendment  fully  operative,  and  so 
makes  any  taking  of  property  without  due  process  as 
unconstitutional  as  if  the  charter  contained  no  provision  for 
alteration  or  amendment.3 

1  Dartmouth  College  v.  Woodward  (1819)  4  Wheaton  518,  712. 

2  People  v.  Beekes  Dairy  Co.  (1918)  222  N.  ¥.416. 

3  Commonwealth  v.  Essex  Co.  (1859)  13  Gray  239,  253  (Shaw,  C.  J.); 
Detroit  v.  Detroit  etc.  R.  Co.  (1880)  43  Mich.  140,  147  (Cooley,  J.); 
Spring  Valley  W.  W.  Co.  v.  Shottler  (1883)  no  U.  S.  347,  368;  Lake 
Shore  &  M.  S.  R.  R.  v.  Smith  (1898)  173  U.  S.  684,  698;  Chicago,  M.  & 
St.  P.  R.  R.  v.  Wisconsin  (1915)  238  U.  S.  491,  501;  note  in  3  Cor.  L. 
Quar.,  283. 


CHAPTER  XXIII 

FULL  FAITH  AND  CREDIT 

§199.     What  is  Meant  by  the  Requirement  of  Full  Faith  and 
Credit.     It  is  provided  in  the  Constitution  that, 

"Full  faith  and  credit  shall  be  'given  in  each  State  to 
the  public  acts,  records,  and  judicial  proceedings  of  every 
other  State.  And  the  Congress  may  by  general  laws  pre- 
scribe the  manner  in  which  such  acts,  records,  and  pro- 
ceedings shall  be  proved,  and  the  effect  thereof."1 

Of  course  the  provision  that  "full  faith  and  credit  shall  be 
given  in  each  State  to  the  public  acts  ...  of  every  other 
State"  does  not  give  any  extra  territorial  effect  to  state 
legislation.  It  simply  requires  that,  when  rights  or  obli- 
gations have  in  one  State  been  fixed  by  the  statutes  of  that 
State,  the  force  of  such  statutes  in  fixing  such  rights  or 
obligations  shall  be  recognized  in  controversies  arising  in 
any  other  State.2  The  public  records  which  are  referred 

1  Art.  IV,  sec.  I.     For  a  history  of  the  section  see  Watson  on  the 
Constitution,  pp.  1 193  to  1 196.    The  Articles  of  Confederation  provided 
that,  "Full  faith  and  credit  shall  be  given  in  each  of  these  States  to  the 
records,  acts,  and  judicial  proceedings  of  the  courts  and  magistrates  of 
every  other  State."     (Art.   IV.)     The  Commonwealth  of  Australia 
Constitution  Act  provides  that,  "Full  faith  and  credit  shall  be  given, 
throughout  the  Commonwealth  to  the  laws,  the  public  Acts  and  records, 
and  the  judicial  proceedings  of  every  State."     (Chap,  iv,  sec.  118.) 

2  "But  the  courts  of  the  United  States  are  tribunals  of  a  different 
sovereignty,  and  exercise  a  distinct  and  independent  jurisdiction  from 
that  exercised  by  the  state  courts.  .  .  .     And  the  courts  of  the  United 
States  are  bound  to  give  to  the  judgments  of  the  State  courts  the  same 
faith  and  credit  that  the  courts  of  one  State  are  bound  to  give  to  the 
judgments  of  the  courts  of  her  sister  States."    Cooper  v.  Newell  (1899) 
173  U.  S.  553,  567. 

475 


476       THE  AMERICAN  CONSTITUTION     §  200 

to  are  not  only  records  of  judicial  proceedings  but  records  of 
deeds,  mortgages,  marriages,  and  the  like,  kept  in  public 
offices.1 

§200.  Full  Faith  and  Credit  as  Applied  to  Judgments. 
The  constitutional  provision  as  applied  to  judgments 
does  not  give  the  judgment  of  one  State  the  force  of  a 
domestic  judgment  in  another  State,  but  makes  it  evidence 
in  that  other  State  of  the  rights  and  obligations  of  the 
parties  as  established  by  the  judgment.2  Nor  does  the 
provision  put  upon  any  State  the  duty  of  enforcing  a  judg- 
ment in  a  criminal  case  obtained  in  another  State.3  There 
is  no  constitutional  duty  resting  upon  the  state  or  federal 
courts  to  give  full  faith  and  credit  to  judgments  of  foreign 
countries.  If  this  is  done  it  is  solely  as  the  result  of  comity. 4 

It  seems  that  the  fact  that  the  judgment  in  one  State  was 
obtained  upon  an  obligation  of  a  character  which  it  is 
against  the  declared  policy  of  another  State  to  enforce,  does 
not  constitute  an  excuse  to  the  second  State  for  a  refusal  to  give 
full  faith  and  credit — i.  e.,  a  refusal  to  enforce  the  judgment. s 
It  appeared  in  the  case  cited  that  a  gambling  contract  was 
entered  into  in  Mississippi /in  which  State  such  contracts  are 
by  statute  declared  to  be  unenforceable.  The  parties  sub- 
mitted their  controversy  to  arbitration,  and  an  award  was 
made.  An  action  upon  this  award  was  brought  in  Missouri, 

So  also  by  federal  statute  the  records  and  judgments  of  the  territories 
and  District  of  Columbia  are  entitled  to  full  faith  and  credit  in  the 
state  courts.  Embrey  v.  Palmer  (1882)  107  U.  S.  3. 

1  For  the  methods  of  authentication  see  U.  S.  Rev.  Stats.,  sees.  905 
and  906. 

2  Thompson  v.  Whitman  (1873)  18  Wallace  457,  463. 

3  Huntington  v.  Attrill  (1893)  146  U.  S.  657.    But  this  court  points 
out  that  a  distinction  is  to  be  made  between  a  judgment  on  a  statute 
which  may  in  a  broad  sense  be  termed  penal  as  to  the  defendant,  but 
which  is  for  the  purpose  of  remedying  another  person,  and  a  judgment 
on  a  statute  which  aims  merely  to  punish  a  wrong  done  to  the  state 
sovereignty.    The  full  faith  and  credit  clause  applies  to  the  former,  but 
not  to  the  latter. 

4  ^Etna  Life  Ins.  Co.  v.  Tremblay  (1912)  223  U.  S.  185. 

s  Fontleroy  v.  Lum  (1908)  210  U.  S.  230.  Chief  Justice  White  wrote 
a  dissenting  opinion  concurred  in  by  three  other  justices. 


§  201  FULL  FAITH  AND  CREDIT  477 

and  judgment  obtained.  It  was  held  by  the  Supreme  Court 
that  the  constitutional  provision  required  that  full  faith  and 
credit  be  given  to  this  judgment  in  Mississippi.  But  it  seems 
that  a  State  may  expressly  deny  to  its  courts  jurisdiction  of  a 
suit  between  two  foreign  corporations  where  the  cause  of  action 
did  not  arise  within  the  State,  and  this  will  not  constitute 
a  denial  of  full  faith  and  credit,  though  the  cause  of  action 
be  based  upon  a  judgment  rendered  in  another  State. I  A 
fortiori  may  a  State  deny  to  its  courts  jurisdiction  of  actions 
based  solely  upon  a  statute  of  a  sister  State,  as,  for  instance, 
statutes  giving  actions  for  death2;  though  it  may,  of  course, 
allow  such  actions  on  principles  of  comity. 

While  the  Constitution  requires  that  full  faith  and  credit 
shall  be  given  in  each  State  to  judgments  of  every  other 
State,  this  is  only  true  if  the  court  rendering  the  judgment 
had  jurisdiction,  for  if  it  had  not  the  judgment  was  a  nullity 
for  lack  of  due  process ;  and  the  fact  that  the  record  of  the 
case  on  its  face  shows  jurisdiction  is  not  conclusive  of  the 
question,  but  the  court  in  determining  whether  the  judgment 
was  entitled  to  full  faith  and  credit  may  go  beyond  the  re- 
cord and  examine  the  facts.3 

§201.  Judgments  in  Rent.  In  a  proceeding  in  rem,  if  the 
res  is  within  the  State,  the  state  court  has  jurisdiction 
though  the  defendant  did  not  appear  and  was  not  served 
within  the  State,  if  the  court  in  taking  jurisdiction  has 
proceeded  in  accordance  with  the  rules  in  force  in  the  State, 
including  reasonable  rules  for  constructive  notice  by  publi- 
cation.4 The  court  in  the  case  just  cited  makes  clear  the 
field  in  which  this  doctrine  applies,  as  follows5: 

1  Anglo-American  Provision  Co.  v.  Davis  Provision  Co.  No.  I  (1903) 
191  U.  S.  373- 

2  Dougherty  v.  American  McKenna  Process  Co.  (1912)  255  111.  369; 
L.  R.  A.  1915  F.  955,  and  note. 

3  Thompson  v.  Whitman  (1873)  18  Wallace  457.    Old  Wayne  Mutual 
Life  Assoc.  v.  McDonough  (1907)  204  U.  S.  8.     (As  to  due  process  in 
judicial  proceedings,  see  chap.  29.)     But  judgments    are    not    "re- 
examinable  upon  the  merits,  nor  impeachable  for  fraud  in  obtaining 
them."     Hanley  v.  Donoghue  (1885)  116  U.  S.  1,4. 

4  Pennoyer  v.  Neff  (1877)  95  U.  S.  714.  s  Ibid.,  734. 


478  THE  AMERICAN  CONSTITUTION  §§202,203 

"It  is  true  that,  in  a  strict  sense,  a  proceeding  in  rent  is 
one  taken  directly  against  property,  and  has  for  its  object 
the  disposition  of  the  property  without  reference  to  the 
title  of  individual  claimants;  but,  in  a  larger  and  more 
general  sense,  the  terms  are  applied  to  actions  between 
parties,  where  the  direct  object  is  to  reach  and  dispose  of 
property  owned  by  them,  or  of  some  interest  therein. 
Such  are  cases  commenced  by  attachment  against  the 
property  of  debtors,  or  instituted  to  partition  real  estate, 
foreclose  a  mortgage,  or  enforce  a  lien.  So  far  as  they 
affect  property  in  the  State,  they  are  substantially  pro- 
ceedings in  rem  in  the  broader  sense  which  we  have 
mentioned." 

§202.  Judgments  in  Personam.  In  a  proceeding  in 
personam — that  is,  in  a  proceeding  where  a  judgment  is 
sought  directing  the  defendant  to  do  or  to  refrain  from  doing 
something,  or  directing  the  defendant  to  pay  a  sum  of 
money,  and  property  is  not  by  the  proceedings  brought 
within  the  control  of  the  court  so  as  to  make  the  proceeding 
one  in  rem — in  order  that  a  judgment  may  be  entitled  to 
full  faith  and  credit,  the  case  must  be  of  a  character  to  come 
within  the  jurisdiction  of  the  court,  and  the  court  must  have 
obtained  jurisdiction  of  the  defendant  by  proper  service  of 
process  upon  him,1  or  by  his  appearance  in  the  action.  If 
the  court  has  not  such  jurisdiction  of  the  subject  matter 
and  of  the  defendant,  the  proceeding  is  without  due  pro- 
cess,2 is,  therefore,  without  validity  even  in  the  jurisdiction 
where  rendered,  and  is  not  entitled  to  full  faith  and  credit.3 

§203.  Judgments  in  Divorce  Actions.  Judgments  in 
divorce  actions  do  not,  however,  fall  into  either  of  these 
categories.  Each  State  has  the  right  to  determine  the 
status  of  its  own  residents,  including  the  right  to  determine 
whether  or  not  they  shall  have  the  status  of  married  or  of 
unmarried  persons;  and  a  State  cannot  be  deprived  of  this 
right  with  regard  to  a  resident  by  the  fact  that  the  husband 

1  See  chap.  29  as  to  what  is  proper  service. 

2  See  sec.  237.  a  Pennoyer  v.  Neff  (1877)  95  U.  S.  714. 


§  203  FULL  FAITH  AND  CREDIT  479 

or  wife  of  that  resident  has  removed  from  the  jurisdiction. 
It  may,  therefore,  decree  a  divorce  to  one  of  its  residents, 
when  the  defendant  is  a  non-resident,  if  it  makes  an  effort 
to  give  notice  by  publication  according  to  reasonable  rules 
in  force  in  the  State.  As  a  result  of  this  decree  both  parties 
will  be  divorced  in  that  State,  for  a  decree  cannot  divorce  a 
husband  from  a  woman,  and  still  leave  the  woman  with  a 
husband. x  But  if  the  plaintiff  and  the  defendant  are  both 
nonresidents  the  court  has  no  jurisdiction,  and  the  decree  is 
not  valid  even  in  the  State  where  it  is  rendered,  and  the 
finding  of  the  court  of  divorce  on  the  question  of  residence  or 
domicile  is  not  conclusive.2 

However,  the  fact  that  the  parties  are  no  longer  husband 
and  wife  in  the  State  of  divorce,  does  not  necessarily  deter- 
mine that  they  are  not  still  husband  and  wife  in  some  other 
State.  Their  status  in  that  other  State  will  be  determined 
by  the  law  of  that  State,  except  when  the  judgment  of  divorce 
in  the  first  State  is  entitled  under  the  Constitution  to  full 
faith  and  credit,  or  is  given  effect  in  the  second  State  on 
grounds  of  comity.3  A  court  has  such  jurisdiction  as  will 
make  its  judgment  of  divorce  entitled  to  full  faith  and 
credit  under  the  following  circumstances : 

(1)  When  the  defendant  as  well  as  the  plaintiff  was  a 
resident  of  the  State  in  which  the  judgment  was  rendered. 
Normally  a  married  woman's  domicile  is  the  same  as  her 
husband's.     When  a  husband  deserts  his  wife  she  may  ac- 
quire a  separate  domicile.     She  may  not,  however,  acquire 
a  separate  domicile  when  she  leaves  her  husband  without 
cause,  but  she  may  do  so  if  she  leaves  him  for  reasons  which 
would  support  an  action  by  her  for  a  divorce  or  legal 
separation. 4 

(2)  When  the  defendant,  though  not  a  resident  of  the 

1  Haddock  v.  Haddock  (1906)  201  U.  S.  562,  569. 

2  Bell  v.  Bell  (1901)  181  U.  S.  175;  Andrews  v.  Andrews  (1903)  188 
U.  S.  14. 

3  Examples  of  the  recognition  on  grounds  of  comity  of  divorces  ob- 
tained in  other  States  are  Ditson  v.  Ditson  (1856)  4  R.  I.  87;  Felt  v.  Felt 
(1899)  59  N.  J.  Eq.  606;  Dunham  v.  Dunham  (1896)  162  111.  589. 

4  Haddock  v.  Haddock  (1906)  201  U.  S.  562,  570. 


480       THE  AMERICAN  CONSTITUTION     §  203 

State  in  which  the  judgment  was  rendered,  was  served  with 
process  in  that  State,  or  voluntarily  appeared  in  the  divorce 
proceedings. x 

(3)  When,  though  the  defendant  was  not  a  resident  of  the 
State  in  which  the  judgment  was  rendered,  and  was  not 
served  with  process  in  that  jurisdiction  and  did  not  volun- 
tarily appear,  the  State  in  which  the  judgment  was  rendered 
was  the  "last  matrimonial  domicile"  of  the  parties.  In 
Atherton  v.  Atherton2  it  appeared  that  the  husband's  domicile 
was  Kentucky  and  there  the  husband  and  wife  lived  to- 
gether. The  wife  left  her  husband  and  went  to  New  York 
where  she  later  brought  the  action  for  divorce.  The  New 
York  court  found  that  the  wife  left  her  husband  because  of 
his  cruel  and  abusive  treatment  without  fault  on  her  part. 
In  the  New  York  action  for  divorce  the  husband  appeared 
and  set  up  a  divorce  obtained  previously  by  him  in  Ken- 
tucky upon  constructive  service.  The  New  York  court 
found  that  the  wife  had  become  a  resident  of  New  York,  and 
that  the  Kentucky  divorce  was  inoperative  in  New  York, 
and  gave  judgment  in  the  wife's  favor  for  divorce.  Upon 
appeal  the  Supreme  Court  of  the  United  States  determined 
that  the  Kentucky  decree  was  entitled  to  full  faith  and  credit 
in  New  York,  and  constituted,  therefore,  a  defense  to  the 
divorce  action  in  the  latter  State.  The  Supreme  Court  said 3 : 

"This  case  does  not  involve  the  validity  of  a  divorce 
granted,  on  constructive  service,  by  the  court  of  a  State 
in  which  only  one  of  the  parties  ever  had  a  domicile ;  nor 
the  question  to  what  extent  the  good  faith  of  the  domicile 
may  be  afterwards  inquired  into.  In  this  case  the 
divorce  in  Kentucky  was  by  the  court  of  the  State  which 
had  always  been  the  undoubted  domicile  of  the  husband 
and  which  was  the  only  matrimonial  domicile  of  the  hus- 
band and  wife.  The  single  question  to  be  decided  is  the 
validity  of  that  divorce,  granted  after  such  notice  had 
been  given  as  was  required  by  the  statutes  of  Kentucky." 

1  Haddock  v.  Haddock  (1906)  201  U.  S.  562,  570. 
a  (1901)  181  U.  S.  155.  3  ibid.  171. 


§  203  FULL  FAITH  AND  CREDIT  481 

The  court  refused  to  inquire  into  the  validity  of  the  wife's 
claim  of  domicile  in  New  York,  as  it  would  have  done  if  the 
enforceability  of  the  Kentucky  divorce  in  New  York  had 
turned  upon  the  question  whether  Kentucky  was  the  wife's 
domicile  as  well  as  that  of  the  husband.  In  the  later  case 
Thompson  v.  Thompson*  the  Supreme  Court  in  speaking  of 
the  case  of  Haddock  v.  Haddock 2  said : 

"The  New  York  court  refused  to  give  credit  to  the 
Connecticut  judgment,  and  this  court  held  that  there  was 
no  violation  of  the  full  faith  and  credit  clause  in  the  refusal, 
and  this  because  there  was  not  at  any  time  a  matrimonial 
domicile  in  the  State  of  Connecticut  and  therefore  the 
res — the  marriage  status — was  not  within  the  sweep  of 
the  judicial  power  of  that  State." 

The  facts  in  the  Thompson  case  were  similar  to  those  in 
Atherton  v.  Atherton  and  the  court  held  that  the  divorce 
obtained  by  the  husband  in  the  State  of  his  domicile  and 
which  was  the  last  matrimonial  domicile  was  binding  in  the 
District  of  Columbia  to  which  the  wife  had  moved. 

Great  confusion,  and  situations  that  are  in  many  ways 
unfortunate,  may  and  often  do  result  from  the  fact  that 
persons  may  have  obtained  divorces  valid  in  the  States 
where  granted  but  which  other  States  are  not  bound  to 
recognize.  However,  it  is,  of  course,  possible  for  a  State  to 
give  effect  to  a  foreign  divorce  through  comity,  though  the 
decree  was  not  such  as  to  be  entitled  to  full  faith  and  credit. 
This  course  is  followed  by  a  considerable  number  of  the 
States,  although  different  States  hedge  it  about  with  vary- 
ing limitations,  resulting  from  their  different  views  of  what 
public  policy  dictates.3 

1  (1913)  226  U.  S.  551,  562.  2  (1906)  201  U.  S.  562. 

3  Excellent  collections  of  cases  will  be  found  in  notes  in  59  L.  R.  A. 
162,  167;  18  L.  R.  A.  (N.  S.)  647,  649;  L.  R.  A.  1917  B  1032,  1042. 

31 


CHAPTER   XXIV 

INTERSTATE  PRIVILEGES  AND  IMMUNITIES 

§204.  Citizens  Are  Entitled  to  Equal  Privileges  and  Im- 
munities in  Each  State.  It  is  declared  in  the  Constitution 
that,  "The  citizens  of  each  State  shall  be  entitled  to  all 
privileges  and  immunities  of  citizens  in  the  several  states."1 
The  Fourteenth  Amendment,  which  was  adopted  in  1868, 
further  provides  that,  "All  persons  born  or  naturalized  in 
the  United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  State  wherein 
they  reside."2 

1  Art.  IV,  sec.  2,  par.  i.  The  forerunner  of  this  provision  is  found  in 
article  IV  of  the  Articles  of  Confederation: 

"The  better  to  secure  and  perpetuate  mutual  friendship  and  inter- 
course among  the  people  of  the  different  States  in  this  Union,  the  free 
inhabitants  of  each  of  these  States,  paupers,  vagabonds,  and  fugitives 
from  justice  excepted,  shall  be  entitled  to  all  privileges  and  immuni- 
ties of  free  citizens  in  the  several  States;  and  the  people  of  each  State 
shall  have  free  ingress  and  regress  to  and  from  any  other  State,  and 
shall  enjoy  therein  all  the  privileges  of  trade  and  commerce,  subject 
to  the  same  duties,  impositions  and  restrictions  as  the  inhabitants 
thereof  respectively,  provided  that  such  restrictions  shall  not  extend 
so  far  as  to  prevent  the  removal  of  any  property  imported  into  any 
State  to  any  other  State  of  which  the  owner  is  an  inhabitant.  ..." 

It  will  be  noted  that  there  is  here  a  curious  confusion  of  the  terms  "free 
inhabitants,"  "free  citizens,"  and  "people,"  as  pointed  out  in  The 
Federalist,  No.  42. 

The  Commonwealth  of  Australia  Constitution  Act  provides  in  Section 
117: 

"A  subject  of  the  Queen,  resident  in  any  State,  shall  not  be  subject 

in  any  other  State  to  any  disability  or  discrimination  which  would  not 

be  equally  applicable  to  him  if  he  were  a  subject  of  the  Queen  resident 

in  such  other  State." 

3  For  a  consideration  of  this  clause  of  the  amendment  see  sec.  112. 

482 


§§205,206  PRIVILEGES  AND  IMMUNITIES  483 

§205.  What  Privileges  and  Immunities  are  Protected. 
The  Supreme  Court  has  refused  to  attempt  a  complete  and 
comprehensive  definition,  of  the  privileges  and  immunities 
guarantied  by  the  Constitution. 

"  It  is  safer  and  more  in  accordance  with  the  duty  of  a 
judicial  tribunal  to  leave  the  meaning  to  be  declared  in 
each  case,  upon  a  view  of  the  particular  rights  asserted 
or  denied  therein.  And  especially  is  this  true,  when  we 
are  dealing  with  so  broad  a  provision,  involving  matters 
not  only  of  great  delicacy  and  importance,  but  which  are 
of  such  a  character  that  merely  abstract  definition  could 
scarcely  be  correct;  and  a  failure  to  make  it  so  would 
certainly  produce  mischief."1 

The  court  has,  however,  worked  out  with  reasonable  clear- 
ness the  privileges  and  immunities  which  a  citizen  is  entitled 
to  in  one  State  as  a  result  of  citizenship  in  another  State. 
He  has  a  right 

' '  to  pass  into  any  other  State  of  the  Union,  for  the  purpose 
of  engaging  in  lawful  commerce,  trade,  or  business,  with- 
out molestation,  to  acquire  personal  property,  to  take 
and  hold  real  estate,  to  maintain  actions  in  the  courts  of 
the  States,  and  to  be  exempt  from  any  higher  taxes  or 
excises  than  are  imposed  by  the  State  upon  its  own 
citizens."2 

§206.  Exclusion  of  Foreign  Corporations.  But  "special 
privileges  enjoyed  by  citizens  in  their  own  States 
are  not  secured  in  other  States  by  this  provision. 
It  was  not  intended  by  the  provision  to  give  to  the  laws 
of  one  State  any  operation  in  other  States."3  The 

1  Conner  v.  Elliott  (1855)  18  Howard  591,  593. 

a  Ward  v.  Maryland  (1870)  12  Wallace  418,  430;  Blake  v.  McClurg 
(1898)  172  U.  S.  239.  But  in  the  latter  case  it  is  said  that,  "a  State  may 
require  a  non  resident,  although  a  citizen  of  another  State,  to  give  bond 
for  costs,  although  such  bond  is  not  required  of  a  resident.  Such  a  regu- 
lation of  the  internal  affairs  of  a  State  cannot  reasonably  be  character- 
ized as  hostile  to  the  fundamental  rights  of  citizens  of  other  States." 
(P.  256.)  3  Paul  v.  Virginia  (1869)  8  Wallace  168,  178. 


484       THE  AMERICAN  CONSTITUTION     §  206 

right  to  be  a  corporation  is  a  special  privilege  conferred  by 
the  State  granting  the  charter  of  incorporation,  and  this 
right  other  States  are  not  bound  to  recognize,1  and  a 
corporation  as  a  legal  entity  is  not  a  citizen  in  the  sense  in 
which  that  term  is  used  in  the  Fourth  Article  of  the  Con- 
stitution. a  The  exclusion  of  a  foreign  corporation  is  not 
unconstitutional,  except  where  it  wishes  to  enter  for  pur- 
poses of  interstate  commerce,  or  for  the  performance  of 
some  "governmental  or  quasi-governmental  functions"  on 
behalf  of  the  National  Government.3  Under  these  latter 
circumstances  any  interference  with  the  corporation  would 
be  an  infringement  of  the  federal  government's  exclusive 
sphere  of  control.4 

Since  a  State  may,  except  in  the  cases  noted,  exclude  a 
foreign  corporation,  it  may  equally  attach  conditions 
precedent  to  the  privilege  of  doing  business  in  the  State.5 
If  a  foreign  corporation  is  only  given  a  license  to  do  business 
in  a  State  for  a  definite  period,  it  has  been  held  that  at  the 
expiration  of  that  period  the  privilege  may  be  withdrawn,  or 
a  new  condition  attached  to  its  renewal,  without  infringing 
the  equal  protection  clause,  the  corporation,  upon  the  expir- 
ation of  the  license,  being  in  the  eye  of  the  law  "outside, 

1  By  parity  of  reasoning  a  person  who  has  been  granted  the  privilege 
of  practicing  law,  or  medicine  in  one  State  does  not  acquire  a  like  privi- 
lege in  every  other  State.    Robinson's  Case  (1881)  131  Mass.  376;  Ex 
parte  Spinney  (1875)  10  Nev.  323. 

2  Paul  v.  Virginia  (1869)  8  Wallace  168.    It  is  clear  that  a  corporation 
being  neither  born  nor  naturalized  does  not  come  within  the  term  "citi- 
zen" in  section  one  of  the  Fourteenth  Amendment.    With  regard  to 
corporations  and  Article  III  see  sec.  44;  and  with  regard  to  their  rights 
as   "persons"  under  the  Fourteenth  Amendment,  see  sees.  236  and 
237. 

3  Pembina  Mining  Co.  v.  Pennsylvania  (1888)  125  U.  S.  181,  188,  190; 
Hooper  v.  California  (1895)  155  U.  S.  648,  652,  and  cases  cited. 

*  Ibid.;  International  Text  Book  Co.  v.  Pigg  (1910)  217  U.  S.  91. 

s  "The  States  may,  therefore,  require  for  the  admission  within  their 
limits  of  the  corporations  of  other  States,  or  of  any  number  of  them,  such 
conditions  as  they  may  choose,  without  acting  in  conflict  with  the  con- 
cluding provisions  of  the  first  section  of  the  Fourteenth  Amendment." 
Pembina  Mining  Co.  v.  Pennsylvania  (1888)  125  U.  S.  181,  189. 


§  206      PRIVILEGES  AND  IMMUNITIES         485 

at  the  threshold,  seeking  admission,  with  consent  not  yet 
given."1 

Strong  efforts  have  been  made  by  the  States  to  prevent 
the  removal  of  cases,  on  the  ground  of  diverse  citizenship  of 
the  parties,2  to  the  federal  courts  by  foreign  corporations. 
When  it  has  been  sought  to  reach  this  result  by  requiring  as 
a  condition  to  admission  to  the  State,  an  agreement  by  the 
foreign  corporation  not  to  remove  to  the  federal  courts  suits 
which  are  brought  in  the  courts  of  the  State,  the  Supreme 
Court  has  declared  such  agreements  to  be  void  as  attempts  to 
oust  the  federal  courts  of  their  constitutional  jurisdiction. 3 
However,  in  Doyle  v.  Continental  Insurance  Company4  and 
Security  Mutual  Insurance  Company  v.  Prewitt5  the  Supreme 
Court  held  valid  a  condition  attached  to  a  license  to  a  for- 
eign corporation  to  do  business  in  the  State,  to  the  effect 
that,  if  the  corporation  should  remove  to  a  federal  court  an 
action  brought  in  a  court  of  the  State,  its  license  would  be 
revoked. 

"No  stipulation  or  agreement  being  required  as  a 
condition  for  coming  into  the  State  and  obtaining  a 
permit  to  do  business  therein,  the  mere  enactment  of  a 
statute,  which,  in  substance,  says  if  you  choose  to  exercise 
your  right  to  remove  a  case  into  a  federal  court  your  right 
to  further  do  business  within  the  State  shall  cease  and 
your  permit  shall  be  withdrawn,  is  not  open  to  any 
constitutional  objection."6 

Nevertheless  the  authority  of  these  two  cases  has  been 
confined  to  a  very  narrow  field  by  subsequent  decisions.  If 
the  foreign  corporation  is  already  within  the  jurisdiction  of 

1  Philadelphia  F.  Ins.  Co.  v.  New  York  (1886)  1 19  U.  S.  1 10,  1 19.  As 
to  when  a  corporation  is  within  the  jurisdiction  of  a  State  so  as  to  be 
entitled  to  equal  protection,  see  sec.  276. 

3  See  sec.  44. 

3  Insurance  Co.  v.  Morse  (1874)  20  Wallace  445;  Baron  v.  Burnside 
(1887)  121  U.  S.  186;  Barrow  S.  S.  Co.  v.  Kane  (1898)  170  U.  S.  100. 

4  (1876)  94  U.  S.  535,  Justices  Bradley,  Swayne  and  Miller  dissenting, 
s  (1906)  202  U.  S.  246,  Justices  Day  and  Harlan  dissenting. 

6  Ibid.,  257. 


486       THE  AMERICAN  CONSTITUTION     §  207 

the  State  at  the  time  when  the  condition  against  resort  to 
federal  tribunals  is  laid  down  by  state  legislation,  the  foreign 
corporation  has  come  under  the  shield  of  the  equal  protec- 
tion clause,  and  such  legislation  constitutes  a  denial  of  equal 
protection.1  Furthermore  it  seems  that  if  the  foreign 
corporation  desires  to  do  interstate  as  well  as  intrastate 
business  within  the  State  such  a  condition  is  a  burden  placed 
upon  interstate  commerce  and  is  unconstitutional  for  that 
reason. 2 

§207.  Private  Rights  Only  Are  Protected  by  the  Privileges 
and  Immunities  Clause.  The  provision  of  the  Constitution 
under  consideration  does  not  give  the  citizen  of  every  State 
the  right  to  vote  or  to  hold  office  in  every  other  State.  It 
secures  and  protects  private  rights  as  distinguished  from 
public  rights.3  The  early  case  of  Carfield  v.  Caryell*  is 
interesting.  A  New  Jersey  statute  forbade  any  person 
not  an  inhabitant  of  the  State  to  gather  oysters  within  the 
State  on  board  of  any  vessel  not  wholly  owned  by  an 
inhabitant  of  the  State.  This  statute  was  held  not  to  be  in 
conflict  with  the  Constitution,  on  the  ground  that  the  right 
to  creatures  feros  natures,  such  as  wild  animals,  fish  and 
oysters,  is  the  property  right  of  all  of  the  citizens  of  the 
State  collectively,  and  that  this  right  is  not  such  a  privilege 
as  the  constitution  has  reference  to,  it  not  being  reasonably 
within  the  purpose  of  the  Constitution  to  allow  an  outsider 
to  share  in  this  peculiar  collective  right. 

1  Herndon  v.  Chicago,  R.  I.  &  Pac.  Ry.  (1910)  218  U.  S.  135,  158.    As 
to  the  equal  protection  clause  see  generally  sec.  276. 

2  Harrison  v.  St.  Louis  &  San  Fran.  R.  R.  (1914)  232  U.  S.  318,  332; 
Wisconsin  v.  Philadelphia  &  R.  Coal  Co.  (1916)  241  U.  S.  329. 

3  See  the  early  statement  in  Campbell  v.  Morris  (1797)  3  Harr.  & 
McH.  (Md.)  535.     See  also  Blake  v.  McClurg  (1895)  172  U.  S.  239,  256. 

«  (1825)  Fed.  Cas.  No.  3,  230. 


CHAPTER  XXV 

INTERSTATE  RENDITION  OF  FUGITIVES 

§208.     Constitutional  and  Statutory  Provisions.     An  im- 
portant provision  of  the  Constitution1  is  that, 

"A  person  charged  in  any  State  with  treason,  felony,  or 
other  crime,  who  shall  flee  from  justice,  and  be  found  in 
another  State,  shall,  on  demand  of  the  executive  author- 
ity of  the  State  from  which  he  fled,  be  delivered  up,  to  be 
removed  to  the  State  having  jurisdiction  of  the  crime." 

Legislation  to  make  this  provision  effective  was  enacted  by 
Congress  in  I793,2  which  remains  on  the  statute  book  at 
present  day,  with  only  slight  verbal  changes. 3  It  puts  upon 
the  governor  of  the  State  or  Territory  to  which  a  person  has 
fled  the  duty  to  arrest  and  deliver  him  to  the  agent  of  the 
State  or  Territory  from  which  he  has  fled,  upon  demand 
made  by  the  governor  of  that  State  or  Territory,  upon 
production  of  a  copy  of  an  indictment  found,  or  an  affidavit 
made  before  a  magistrate  charging  the  fugitive  with  the 
commission  of  treason,  felony  or  other  crime,  certified  as 
authentic  by  the  governor  of  the  demanding  State.  If  no 

1  Art  IV,  sec.  2,  par.  2.    This  paragraph  is  taken  with  slight  changes 
from  Article  IV  of  the  Articles  of  Confederation. 

2  Act  of  Feb.  12,  1793,  Chap  7,  i  Stat.  302.     In  1791  the  governor 
of  Pennsylvania  made  a  demand  upon  the  governor  of  Virginia  for  the 
extradition  of  a  criminal.    Since  it  was  not  clear  under  the  constitutional 
provision  what  proof  should  be  required  that  the  person  demanded  was 
a  fugitive  from  justice,  the  governors  agreed  to  bring  the  matter  before 
the  President,  who  submitted  it  to  the  consideration  of  Congress.    The 
statute  of  1 793  was  the  result.    Kentucky  v.  Dennison  (i  860)  24  Howard 
66^105. 

gU.  S.  Rev.  Stat.  sees.  5278  and  5279. 

487    ' 


488       THE  AMERICAN  CONSTITUTION     §  209 

agent  appears  to  take  the  fugitive  away  within  six  months 
of  arrest  he  may  be  discharged.  Expenses  of  arrest  and 
transportation  are  to  be  borne  by  the  demanding  State. 
It  is  made  a  crime  to  take  by  force  a  person  so  arrested 
from  the  agent  of  the  demanding  State. 

§209.  This  Duty  Not  Enforceable  by  Mandamus.  Clearly 
the  constitutional  provision,  and  the  congressional  legis- 
lation enacted  by  its  authority,  place  a  duty  upon  the 
governor  of  a  State  in  which  a  fugitive  is  found,  and  to 
whom  the  requisite  evidence  of  guilt  is  presented,  to  arrest 
the  fugitive  and  deliver  him  to  the  agent  of  the  demanding 
State.  In  the  case  of  Kentucky  v.  Dennison1  the  question 
was  raised  as  to  whether,  under  such  circumstances,  a  writ 
of  mandamus  could  issue  from  the  Supreme  Court  to  a 
governor  directing  him  to  make  the  arrest  and  delivery 
demanded,  when  he  had  refused  to  do  so.  The  court 
recognized  that  a  governor  under  such  circumstances  was 
under  a  "moral  duty"  to  make  the  arrest  and  delivery. 

"The  performance  of  the  duty,  however,  is  left  to  de- 
pend on  the  fidelity  of  the  State  Executive  to  the  compact 
entered  into  with  the  other  States  when  it  adopted  the 
Constitution  of  the  United  States,  and  became  a  member 
of  the  Union.  It  was  so  left  by  the  Constitution,  and 
necessarily  so  left  by  the  Act  of  I793-"2 

Cases  have  from  time  to  time  arisen  in  which  interstate 
extradition  has  been  refused,  but  for  the  most  part  the 
chief  executives  of  the  States  have  conscientiously 
responded  to  the  "moral  duty"  which  rests  upon  them.3 

1  (1860)  24  Howard  66.  a  Ibid.,  109. 

3  A  State  has  no  power  under  the  Constitution  to  surrender  fugitives 
from  justice  to  foreign  States.  On  this  point  the  Supreme  Court  divided 
evenly  in  Holmes  v.  Dennison  (1840)  14  Peters  540,  but  later  declared 
unanimously  against  the  possession,  of  such  power  by  the  States,  on  the 
ground  that  international  extradition  falls  within  the  exclusive  jurisdic- 
tion of  the  federal  government  over  foreign  relations.  Though  this  was 
a  dictum  it  may  be  considered  authoritative.  United  States  v.  P.auscher 
(1886)  1 19  U.  S.  407.  See  also  Ex  parte  Holmes  (1840)  12  Vt.  631,  and 
People  v.  Curtis  (1872)  50  N.  Y.  321.  With  regard  to  international 
extradition  sze  sec.  36. 


§§210,211    INTERSTATE  RENDITION  489 

§210.  Supplementary  State  Legislation.  Although  any 
state  legislation  in  conflict  with  the  constitutional  provision 
or  with  congressional  legislation  as  to  interstate  extradition 
would  be  void,  States  may  constitutionally  legislate  in  aid 
of  congressional  legislation  on  the  subject.  Such,  for 
instance,  would  be  a  state  statute  directing  how  the  fugitive 
is  to  be  arrested  and  secured. r 

§211.  Judicial  Review  of  A  rrest  and  Surrender  of  Fugitive. 
The  act  of  a  governor  in  arresting  a  fugitive  from  justice 
and  in  delivering  him  to  an  agent  of  the  demanding  State 
may  be  inquired  into  by  a  federal  court  through  a  writ  of 
habeas  corpus,  to  determine  whether  he  has  acted  in  accord- 
ance with  the  provisions  of  the  Constitution  and  federal 
statute.2  Since  neither  the  arresting  officer  of  the  State  in 
which  the  fugitive  is  arrested,  nor  the  agent  of  the  demand- 
ing State  to  whom  he  is  delivered,  is  an  officer  of  the  United 
States,  the  courts  of  the  State  in  which  the  fugitive  is 
arrested  may  also  inquire,  by  means  of  habeas  corpus  pro- 
ceedings, into  the  validity  of  the  arrest.3 

Upon  a  demand  for  interstate  extradition  two  things 
must  appear  before  compliance  will  be  justified, 

"first,  that  the  person  demanded  is  substantially  charged 
with  a  crime  against  the  laws  of  the  State  from  whose 
justice  he  is  alleged  to  have  fled,  by  an  indictment  or  an 
affidavit,  certified  as  authentic  by  the  governor  of  the 
State  making  the  demand;  and,  second,  that  the  person 
demanded  is  a  fugitive  from  the  justice  of  the  State  the 
executive  authority  of  which  makes  the  demand."4 

The  first  of  these  requirements  presents  a  question  of  law, 
upon  the  papers  presented,  in  a  habeas  corpus  proceeding, s 
and  if  it  is  found  that  the  papers  do  not  conform  to  the 

1  Commonwealth  v.  Tracy  (1843)  5  Metcalf  (Mass.)  536;  Ex  parte 
Walters  (1913)  106  Miss.  439;  Ex  parte  McKean  (1878)  3  Hughes  (Fed.) 

23- 

3  Roberts  v.  Reilly  (1885)  1 16  U.  S.  80. 

*  Robb  v.  Connelly  (1884)  in  U.  S.  624. 

« Roberts  v.  Reilly  (1885)  116  U.  S.  80.  *Ibid. 


490       THE  AMERICAN  CONSTITUTION     §211 

requirements  of  the  federal  statute,  the  prisoner  must  be 
discharged  from  custody.  It  is  sufficient,  however,  if  the 
indictment  or  affidavit  "shows  satisfactorily  that  the 
fugitive  has  been  in  fact,  however  inartificially,  charged 
with  crime  in  the  State  from  which  he  has  fled,"  though  the 
indictment  may  not  be  faultless  as  to  pleading1;  and  in 
habeas  corpus  proceedings  the  court  will  not  consider  the 
question  whether  the  fugitive  is  in  fact  guilty  of  the  crime 
charged. 2 

The  question  whether  the  person  demanded  is  a  fugitive 
from  justice  is  a  question  of  fact,  which  the  governor  upon 
whom  the  demand  is  made  must  decide,  and  his  decision  is 
prima  facie  evidence  of  the  fact  in  proceedings  on  a  writ  of 
habeas  corpus.  ' '  If  upon  a  question  of  fact  made  before  the 
governor  which  he  ought  to  decide,  there  were  evidence  pro 
and  con  the  courts  might  not  be  justified  in  reviewing  the 
decision  of  the  governor  upon  such  question,"  but  when 
the  evidence  presented  to  the  governor,  that  the  person 
arrested  is  not  a  fugitive,  is  conclusive,  the  prima  facie 
case  is  rebutted,  and  the  prisoner  should  be  discharged. 3 
A  person  who  was  not  actually  in  the  State  when  the 
crime  is  alleged  to  have  been  committed  is  not  a  fugitive; 
constructive  presence  is  not  sufficient,  for  if  he  was  not  in 
the  State 

"it  could  not  be  properly  held  that  he  had  fled  from  it. 
.  .  .  He  must  have  been  there  when  the  crime  was 
committed,  as  alleged,  and  if  not,  a  subsequent  going 
there  and  coming  away  is  not  a  flight."4 

But  the  motive  with  which  he  left  the  State  where  it  is 
alleged  that  he  committed  a  crime  is  not  important.5  The 
right  to  interstate  extradition  applies  to  all  crimes  whether 

1  Pierce  v.  Creecy  (1908)  210  U.  S.  387,  402. 

2  Drew  v.  Thaw  (1914)  235  U.  S.  432. 

3  Hyatt  v.  Corkran  (1903)  188  U.  S.  691,  711.  « Ibid.,  719. 

s  "It  long  has  been  established  that  for  purposes  of  extradition  be- 
tween the  States  it  does  not  matter  what  motive  induces  the  departure." 
Drew  v.  Thaw  (1914)  235  U.  S.  432,  439. 


§  212  INTERSTATE  RENDITION  491 

felonies  or  misdemeanors,  and  whether  statutory  or  derived 
from  the  common  law. x 

§212.  Kidnapping  of  Fugitives.  A  very  interesting 
question  was  presented  to  the  United  States  Supreme  Court 
in  the  case  of  Mahon  v.  Justice. 2  The  governor  of  Kentucky 
had  made  a  demand  upon  the  governor  of  West  Virginia  for 
the  arrest  and  delivery  of  Mahon,  accused  of  murder  in 
Kentucky.  Before  the  arrest  was  made  persons  from 
Kentucky  entered  West  Virginia,  apprehended  Mahon  and 
carried  him  to  Kentucky  where  he  was  put  in  jail  pending 
trial  under  an  indictment  for  murder.  The  governor  of 
West  Virginia  on  behalf  of  that  State,  and  Mahon  individu- 
ally presented  to  the  federal  district  court  in  Kentucky 
petitions  fora  writ  of  habeas  corpus,  directing  the  production 
of  Mahon  and  his  return  to  West  Virginia.  The  court 
admitted  that  Mahon  would  have  been  entitled,  while  still 
in  West  Virginia  to  a  writ  of  habeas  corpus  from  the  federal 
or  West  Virginia  courts  to  free  him  from  the  unlawful  arrest 
in  that  State;  that  the  persons  kidnapping  him  might  have 
been  extradited  from  Kentucky  to  West  Virginia,  because 
of  the  crime  committed  in  the  latter  State;  and  that  if 
Mahon's  arrest  after  his  return  to  Kentucky  was  in  any 
respect  illegal  he  might  obtain  a  writ  in  the  Kentucky 
courts  to  free  him  from  such  arrest.  The  court,  however, 
found  no  justification  for  freeing  him  from  lawful  arrest  in 
Kentucky  because  others  had  committed  a  wrong  against  him, 
or  had  committed  an  offense  against  another  State,  and  held 
that  he  was  not  in  custody  in  violation  of  the  Constitution. 3 

1  Kentucky  v.  Dennison  (1860)  24  Howard  66,  99,  102. 

2  (1888)  127  U.  S.  700.    And  see  Pettibone  v.  Nichols  (1906)  203  U.  S. 
192. 

3  Section  753  of  the  United  States  Revised  Statutes  declares  that, 
"the  writ  of  habeas  corpus  shall  in  no  caseexten*  to  a  prisoner  in  jail, 
unless  where  he  is  in  custody  under  or  by  color  of  the  authority  of  the 
United  States,    or  is  committed  for  trial  before  some  court  thereof;  or 
is  in  custody  for  an  act  done  or  omitted  in  pursuance  of  a  law  of  the 
United  States,  or  of  an  order,  process,  or  decree  of  a  court  or  judge 
thereof;  or  is  in  custody  in  violation  of  the  Constitution  or  of  a  law  or 
treaty  of  the  United  States." 


492  THE  AMERICAN  CONSTITUTION  §§213,214 

The  court  suggested  that  Congress  might  pass  a  law  requiring 
the  return  of  persons  wrongfully  abducted  from  a  State,  but 
did  not  pass  upon  that  question.  Justice  Bradley  and 
Justice  Harlan  dissented  on  the  ground  that  the  Constitu- 
tion by  providing  for  interstate  extradition  excluded  all 
other  means  of  obtaining  jurisdiction  by  one  State  of  a 
person  who  had  fled  to  another  State,  and  that  a  person  held 
in  one  State  as  the  result  of  abduction  from  another  is, 
therefore,  held  in  violation  of  the  Constitution,  and  that 
the  proper  remedy  of  the  State  from  which  such  person  is 
abducted  is  by  writ  of  habeas  corpus. I 

§213.  A  Person  Extradited  for  One  Crime  May  Be  Tried  for 
Others.  When  a  person  has  been  extradited  from  one  State 
to  another  for  the  commission  of  a  particular  cime,  he  may, 
nevertheless,  be  tried  in  the  demanding  State  for  other 
crimes.  There  is  nothing  in  the  Constitution  to  prevent 
such  trials,  and  the  fugitive  having  been  brought  within  the 
jurisdiction  of  the  State  may  properly  be  tried  by  that  State 
for  any  past  offenses  against  its  sovereignty. 2 

§214.  Return  of  Persons  Held  to  Service.  There  is  a 
further  provision  in  the  Constitution  with  regard  to  inter- 
state relations,  as  follows:3 

"No  person  held  to  service  or  labor  in  one  State,  under 
the  laws  thereof,  escaping  into  another,  shall,  in  conse- 
quence of  any  law  or  regulation  therein,  be  discharged  from 
such  service  or  labor,  but  shall  be  delivered  up  on  claim 
of  the  party  to  whom  such  service  or  labor  may  be  due." 

This  provision  was  undoubtedly  introduced  to  protect  slave 
owners;4  and,  therefore,  since  the  adoption  in  1865  of  the 

1  For  a  consideration  of  the  situation  when  a  fugitive  has  been  ab- 
ducted from  a  foreign  country  see  sec.  36. 

3  Lascelles  v.  Georgia  (1893)  148  U.  S.  537.  For  a  consideration  of  this 
question  when  a  fugitive  has  been  extradited  from  a  foreign  country 
see  sec.  36. 

3  Art.  IV,  sec.  2,  par.  3.  This  is  similar  to  the  provision  contained  in 
Article  VI  of  the  Ordinance  for  the  government  of  the  Northwest  Terri- 
tory, adopted  by  the  Continental  Congress  in  July,  1787. 

*  For  a  full  discussion  of  the  constitutional  provision  see  Prigg  v. 
Pennsylvania  (1842)  16  Peters  539. 


§  214  INTERSTATE  RENDITION  493 

Thirteenth  Amendment  abolishing  slavery  and  involuntary 
servitude,  it  is  practically  obsolete.  But  since  the  Thir- 
teenth Amendment  does  not  prevent  the  apprenticing  of 
minors,  the  provision  above  quoted  may  still  apply  to  such 
persons. x 

1  See  a  note  in  Willoughby  on  the  Constitution,  234. 


CHAPTER  XXVI 

THE  THIRTEENTH  AMENDMENT 

§215.  Text  of  the  Amendment.  The  Thirteenth  Amend- 
ment to  the  Constitution1  is  as  follows: 

' '  Section  i .  Neither  slavery  nor  involuntary  servitude, 
except  as  a  punishment  for  crime  whereof  the  party  shall 
have  been  duly  convicted,  shall  exist  within  the  United 
States  or  any  place  subject  to  their  jurisdiction. 

"Section  2.  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation." 

§216.  Slavery  Recognized  by  the  Constitution.  Although, 
at  the  time  of  the  adoption  of  the  Constitution,  slavery  was 
dying  out  in  the  northern  States,  it  prevailed  very  exten- 
sively in  the  south,  where  slave  labor  was  found  to  be  par- 
ticularly profitable.  In  order  to  obtain  the  adherence  of 
the  southern  States  to  the  new  system  of  government  it  was 
necessary  to  recognize  the  institution  of  slavery,  and  to 
make  certain  concessions  to  the  slave-holding  States.  In 
the  first  place,  as  we  have  seen, a  slavery  is  tacitly  recognized 
in  the  Fourth  Article  of  the  Constitution,  which  provides 
for  the  return  of  runaway  slaves.  Again,  in  the  First 
Article,  national  legislation  is  forbidden  before  the  year  1 808 
which  would  prohibit  the  importation  of  slaves.3  The 
greatest  difficulty  arose,  however,  over  the  questions  of 
direct  taxation  and  representation  in  Congress.  On  these 

1  Adopted  in  1865.  2  Sec.  214. 

3  Sec.  9,  par.  i:  "The  migration  or  importation  of  such  persons  as 
any  of  the  States  now  existing  shall  think  proper  to  admit  shall  not  be 
prohibited  by  the  Congress  prior  to  the  year  one  thousand  eight  hundred 
and  eight,  but  a  tax  or  duty  may  be  imposed  on  such  importation,  not 
exceeding  ten  dollars  for  each  person." 

494 


§§  217, 2i8  THE  THIRTEENTH  AMENDMENT  495 

points  a  compromise  was  finally  arrived  at,  which  was 
embodied  in  the  following  provision1: 

"Representatives  and  direct  taxes  shall  be  apportioned 
among  the  several  States  which  may  be  included  within 
this  Union  according  to  their  respective  numbers,  which 
shall  be  determined  by  adding  to  the  whole  number  of 
free  persons,  including  those  bound  to  service  for  a  term 
of  years,  and  excluding  Indians  not  taxed,  three  fifths  of 
all  other  persons." 

It  is  interesting  to  notice  that,  while  the  existence  of  slavery 
is  clearly  recognized  in  the  Constitution,  neither  the  word 
slave  nor  the  word  slavery  is  anywhere  used  in  that  in- 
strument. 

§217.  The  Ordinance  for  the  Government  of  the  Northwest 
Territory.  In  1787  the  Continental  Congress  adopted 
1 '  An  Ordinance  for  the  government  of  the  Territory  of  the 
United  States  Northwest  of  the  river  Ohio" — the  territory 
which  was  later  carved  into  the  states  of  Michigan,  Wiscon- 
sin, Illinois,  Indiana,  and  Ohio.  Certain  articles  "of  com- 
pact between  the  original  States  and  the  people  and  States 
in  the  said  territory"  were  included,  which  the  Ordinance 
declares  shall  "forever  remain  unalterable,  unless  by  com- 
mon consent."  The  sixth  article  provided  that,  "There 
shall  be  neither  slavery  nor  involuntary  servitude  in  the 
said  territory,  otherwise  than  in  the  punishment  of  crimes, 
whereof  the  party  shall  have  been  duly  convicted. ' '  By  this 
provision  all  of  the  great  Northwest  Territory  was  put  into 
the  non-slaveholding  category. 

§218.  Admission  of  Free  and  Slave  States.  But  after  the 
ratification  of  the  Constitution,  with  its  accentuation  of 
slavery  and  anti-slavery  feeling,  the  practice  was  adopted 
of  admitting  into  the  Union  a  free  State  and  a  slave  State 
by  turns  so  as  to  maintain  the  balance  between  the  two 
groups  of  States.  Vermont  was  admitted  in  1791,  Ken- 
tucky in  1792,  Tennessee  in  1796,  and  Ohio  in  1803.  In 

1  Art.  I,  sec.  2,  par.  3.  See  The  Federalist,  No.  54;  Story  on  the  Con- 
stitution, sees.  636  to  643. 


496       THE  AMERICAN  CONSTITUTION     §  218 

1 803  the  great  Louisiana  Purchase  was  made  from  Napoleon, 
adding  vastly  to  the  territory  of  the  United  States,  but  the 
practice  of  admitting  free  and  slave  States  alternately  was 
continued.  Louisiana  was  admitted  in  1812,  Indiana  in 
1816,  Mississippi  in  1817,  Illinois  in  1818,  Alabama  in  1819, 
and  Maine  in  1820. 

In  1818  Missouri  applied  for  admission  to  the  Union  as  a 
slave  State.  The  consideration  of  this  application  brought 
on  a  very  violent  conflict  between  the  slavery  and  anti- 
slavery  forces  in  Congress.  Feeling  ran  very  high,  but 
finally  the  immediate  difficulty  was  met  by  the  famous 
Missouri  Compromise  by  which  that  State  was  admitted 
to  the  Union  as  a  slave  State,  but  it  was  provided  that 

"in  all  that  territory  ceded  by  France  to  the  United 
States,  under  the  name  of  Louisiana,  which  lies  north  of 
36  degrees  30  minutes  north  latitude,  excepting  only  such 
part  thereof  as  is  included  within  the  limits  of  the  State 
contemplated  by  this  Act,  slavery  and  involuntary  servi- 
tude, otherwise  than  in  the  punishment  for  crime,  whereof 
the  party  shall  have  been  duly  convicted,  shall  be  and  is 
hereby  forever  prohibited." 

In  1836  Arkansas  was  admitted  as  a  slave  State,  while 
Michigan  was  admitted  as  a  free  State  in  1837.  Florida, 
which  had  been  ceded  to  the  United  States  by  Spain  by 
treaty  signed  in  1819  and  ratified  in  1821,  was  admitted  to 
the  Union  as  a  slave  State  in  1845,  and  in  the  same  year 
Texas  was  added  to  the  Union  as  a  slave  State,  having 
seceded  from  Mexico  in  1836.  Iowa,  Wisconsin,  and 
California  were  admitted  as  free  States  in  1846,  1848,  and 
1 850  respectively,  the  State  of  California  being  formed  from 
part  of  the  territory  won  from  Mexico  in  1848,  and  Minne- 
sota and  Oregon  were  admitted  as  free  States  in  1858  and 
1859.  Thus  twenty  new  States  were  admitted  to  the 
Union — eleven  free  and  nine  slave  States,  but  the  contests 
with  regard  to  them  had  made  the  feeling  between  slavery 
and  anti-slavery  adherents  ever  more  and  more  bitter.  The 
twelfth  free  State,  Kansas,  could  not  gain  admittance 


§§  219, 220  THE  THIRTEENTH  AMENDMENT  497 

until  after  the  withdrawal  of  the  southern  Senators  in 
1861. 

§219.  Emancipation  of  the  Slaves  and  Adoption  of  the 
Thirteenth  Amendment.  With  the  secession  of  the  southern 
States  came  the  great  struggle  of  the  Civil  War.  At  first 
the  freeing  of  the  slaves  was  not  contemplated  by  the 
President  or  by  Congress,  but  gradually  sentiment  changed. 
In  the  spring  of  1862,  as  the  result  of  a  suggestion  from  the 
President,  a  joint  resoluton  was  passed  by  Congress  declar- 
ing that  the  United  States  ought  to  cooperate  with  any 
State  willing  to  gradually  abolish  slavery  on  the  basis  of 
compensation.  On  this  basis  slavery  was  abolished  in  the 
District  of  Columbia.  However,  the  border  States  were 
deaf  to  this  suggestion,  and  finally  on  January  i,  1863, 
President  Lincoln  issued  his  famous  Emancipation  Procla- 
mation. When,  after  bitter  years  of  fighting,  the 
Confederacy  was  vanquished,  the  anti-slavery  sentiment 
was,  of  course,  triumphant,  and  Congress  determined  that 
there  should  be  written  into  the  fundamental  law  a  provision 
which  should  for  all  time  prevent  slavery  from  again 
rearing  its  head  in  this  country.  The  Thirteenth  Amend- 
ment was,  therefore,  proposed  and  quickly  ratified. 

§220.  Purpose  of  the  Thirteenth  Amendment.  Although 
the  Thirteenth  Amendment  was  adopted  primarily  to  give 
constitutional  sanction  to  President  Lincoln's  Emanci- 
pation Proclamation,  it  went  further  than  merely  to  prohibit 
negroes  being  owned  and  bartered  as  chattels.  In  the  first 
place  it  protects  all  persons  whether  colored  or  not,  and  in 
the  second  place  it  not  only  forbids  slavery  but  all  forms  of 
involuntary  servitude.  It  should  also  be  noted  that,  while 
the  Fourteenth  and  Fifteenth  Amendments  only  prohibit 
State  action,  the  Thirteenth  Amendment  would  be  equally 
contravened  by  state  or  federal  legislation  and  by  individual 
action  which  reduced  a  person  to  slavery  or  involuntary 
servitude.1  On  the  other  hand  certain  extravagant  claims 

1  It  operates,  therefore,  to  abolish  slavery  among  the  Choctaw  In- 
dians, United  States  v.  Choctaw  Nation  (1903)  38  Ct.  of  Claims  558,  566, 
and  the  Alaskan  tribes,  in  re  Sah  Qual  (1886)  31  Fed.  327. 

32 


498       THE  AMERICAN  CONSTITUTION     §  221 

have  been  made  under  the  Thirteenth  Amendment,  which 
quite  clearly  are  not  justified  by  its  language  or  purpose.  In 
the  Slaughter  House  Cases1  it  was  contended  that  a  state 
statute  which  gave  to  one  corporation  the  exclusive  right  to 
slaughter  cattle  within  a  given  area,  by  compelling  all 
persons  to  resort  to  that  corporation  for  that  purpose  re- 
duced them  to  involuntary  servitude,  but  the  Supreme 
Court  held  that  to  be  too  fanciful  an  application  of  the 
amendment  to  even  justify  serious  consideration.2  In  the 
Civil  Rights  Cases3  the  Supreme  Court  held  that,  under  the 
power  given  to  Congress  to  legislate  to  enforce  the 
Thirteenth  Amendment,  it  had  no  authority  to  prohibit 
discrimination  in  inns,  public  conveyances,  and  places  of 
amusement;  that  such  discrimination  does  not  constitute 
a  badge  of  slavery. 4 

§221.  Peonage  and  Other  Involuntary  Servitude.  Peon- 
age is  a  Mexican  term  used  to  describe  a  condition  whereby 
a  debtor  is  compelled  to  work  out  for  a  creditor  a  debt  or 
obligation  due  to  the  latter.  Peonage  is  clearly  involuntary 
servitude,  and  it  is  no  less  so  because  a  contract  between 
the  parties,  instead  of  a  statute,  gives  the  creditor  the  right 
to  compel  the  performance  of  services  if  the  debt  is  not  paid, 
or  the  obligation  fulfilled,  when  due.5  To  enjoin  an 
employee  from  breaking  his  contract  of  employment,  and 
from  leaving  his  employer  contrary  to  the  terms  of  that 

I.(i872)  16  Wallace  36. 

3  Ibid.,  69. 

a  (1883)  109  U.  S.  3. 

4^J?lessy>zL.Eer&uson  (1896)  163  U.  S.  537,  the  contention  was  made, 
but  almost  impatiently  waived  aside,  that  a  state  statute  which  provides 
for  separate  but  equal  railroad  accommodations  for  white  persons  and 
negroes  conflicted  with  the  constitutional  prohibition  of  slavery  and  in- 
voluntary servitude.  In  Hodges  v.  United  States  (1906)  203  U.  S.  I,  it 
was  held  that  conspiracy  to  prevent  colored  persons  by  intimidation 
from  fulfilling  their  contracts,  could  not  under  the  Thirteenth  Amend- 
ment be  made  an  offense  by  Congress,  since  such  conduct  did  not  re- 
duce the  persons  intimidated  to  slavery  or  involuntary  servitude. 
Justice  Harlan  and  Justice  Day  dissented. 

s  Peonage  Cases  (1903)  123  Fed.  671;  Bailey  v.  Alabama  (1911)  219 
U.  S.  219,  242. 


§  221    THE  THIRTEENTH  AMENDMENT      499 

contract,  would  obviously  be  reducing  him  to  involuntary 
servitude,  and  so  would  be  in  conflict  with  the  purpose  of 
the  Thirteenth  Amendment. z  The  United  States  Supreme 
Court  has  held  that  to  make  the  breach  of  a  contract  for 
personal  services  a  crime,  is  to  so  coerce  the  contracting 
party  to  perform  his  services  as  to  constitute  involuntary 
servitude. 2  The  case  which  was  before  the  court  involved 
a  statute  which  made  it  a  crime  for  any  person,  with  intent 
to  injure  or  defraud  his  employer  to  enter  into  a  contract 
in  writing  for  services,  thereby  obtaining  money  or  property, 
and  with  like  intent,  and  without  just  cause,  and  without 
returning  the  money  or  paying  for  the  property  received,  to 
refuse  or  fail  to  perform  the  services  in  question;  and  the 
statute  further  made  refusal  or  failure  to  return  the  money 
or  pay  for  the  property  prima  facie  evidence  of  intent  to 
defraud,  .while  a  rule  of  evidence  in  the  State  forbade  the 
defendant,  for  the  purpose  of  rebutting  this  presumption,  to 
testify  as  to  his  uncommunicated  intention.  It  was  held 
that,  while  obtaining  money  or  property  by  false  pretenses 
may  be  made  a  crime,  the  purpose  of  the  statute  in  question 
was  to  make  it  a  crime  to  break  a  contract  of  employment, 
and  that  it  was,  therefore,  unconstitutional. 

But  suppose  that  the  employer  seeks  a  decree 
enjoining  the  breach  of  an  express  or  implied 
covenant  not  to  serve  anyone  else  during  the  period 
of  the  contract?  Such  relief  has  been  granted  in 
several  cases,  but  without  considering  the  constitutional 
aspect  of  the  problem. 3  If  the  defendant  disobeys  such  an 

1  Gossard  Co.  v,  Crosby  (1906)  132  la.  155;  Arthur  v.  Oakes  (1894) 
63  Fed.  310;  Delaware,  L.  &  W.  R.  R.  Co.  v.  Switchmen's  Union  (1907) 
158  Fed.  541,  543;  Stocker  v.  Brocklebank  (1851)  3  McH.  &G.  (Eng.)  250. 

a  Bailey  v.  Alabama  (1911)  219  U.  S.  219.  Justices  Holmes  and  Lur- 
ton  dissented  on  the  ground  that  the  Thirteenth  Amendment  does  not 
forbid  state  legislation  making  the  breach  of  employment  contracts 
criminal.  And  see  United  States  v.  Reynolds  (1914)  235  U.  S.  133. 

3  Daly  v.  Smith  (1874)  38  N.  Y.  Super.  Ct.  158;  Cart  v.  Lassard  (1889) 
1 8  Ore.  221 ;  Philadelphia  Ball  Club  v.  Lajoie  (1902)  202  Pa.  210;  Duff  v. 
Russell  (1891)  68  N.  Y.  Super.  Ct.  80,  aff'd.  133  N.  Y.  678;  Keith  v. 
Kellerman  (1909)  169  Fed.  196. 


500       THE  AMERICAN  CONSTITUTION     §  222 

injunction  he  lays  himself  open  to  imprisonment  for  con- 
tempt, which  fact  is  strongly  coercive.  To  be  sure  he  may 
escape  punishment  by  either  fulfilling  his  contract  of  service 
or  by  not  serving  anyone  in  the  capacity  provided  for  in  the 
contract.  When,  however,  the  contract  covers  the  field  of 
endeavor  in  which  he  is  qualified  to  support  himself  the 
alternative  is  rather  one  of  shadow  than  substance.  In  fact 
it  is  generally  recognized  that  the  real  purpose  of  such 
"negative  specific  performance"  is  to  compel  the  defendant 
to  fulfill  his  contract  of  service,  although  it  may  also  have 
as  an  object  the  prevention  of  an  advantage  to  a  rival 
employer.  If  such  is  in  fact  the  real  purpose  and  the  prob- 
able result  of  such  relief  backed  as  it  is  by  the  threat  of 
imprisonment  for  contempt,  it  would  seem  to  be  contrary 
to  the  spirit  of  the  Thirteenth  Amendment,  and  hard  to 
reconcile  with  the  holding  that  it  is  unconstitutional  to 
make  the  breach  of  a  service  contract  a  crime. x 

§222.  Services  Which  May  Be  Constitutionally  Enforced. 
But  a  parent  is  still  entitled  to  the  services  of  his  minor 
child,  and  a  master  to  the  services  of  a  child  duly  appren- 
ticed to  him  during  minority. 2  The  State  may  also  compel 
services  to  it  without  infringing  the  Thirteenth  Amendment. 
So  compulsory  military  service  is  not  involuntary  servitude 
within  the  meaning  of  the  Constitution.3  Nor  is  compul- 
sory work  on  highways,  or  compulsory  jury  service.4  The 
Supreme  Court  has  also  declared  that  federal  legislation 
which  provides  for  the  return  of  deserting  seamen,  and  for 
criminal  punishment  of  seamen  for  desertion  does  not  con- 

1  Gillv.  Maryland  (1846)  4  Gill  (Md.)  487,  490;  Ford  v.  Jermon  (1865) 
6  Phila.  R.  6,  7;  Rice  v.  D'Arville,  reported  in  Boston  Transcript,  Sept. 
29,  1894,  and  noted  in  8  Harv.  L.  Rev.,  172  (opinion  by  Justice  Holmes), 
American  Baseball  &  Athl.  Ass'n  v.  Harper  (1902)  54  Cent.  L.  Jour. 
(Mo.),  449, 451 ;  Gossard  Co.  v.  Crosby  (1906)  132  la.  155,  163.  See  R.  S. 
Stevens,    "Involuntary  Servitude   by   Injunction,"  6  Cor.  L.   Quar. 

235. 

2  Clyattv.  United  States  (1905)  197  U.  S.  207,  216;  Note  in  18  L.  R.  A. 

(N.  S.)  893- 

3  Selective  Draft  Cases  (1918)  245  U.  S.  366,  390. 

4  Butler  v.  Perry  (1916)  240  U.  S.  328. 


§  222    THE  THIRTEENTH  AMENDMENT      501 

travene  the  Thirteenth  Amendment.1  This  conclusion  is 
based  largely  upon  an  historical  argument,  but  the  public 
service  character  of  the  employment  seems  also  to  have 
weighed  with  the  court.  In  a  later  case  the  same  court 
suggests  that : 

' '  it  may  be — but  upon  that  point  we  express  no  opinion — 
that,  in  the  case  of  a  labor  contract  between  an  employer 
engaged  in  interstate  commerce  and  his  employee,  Con- 
gress could  make  it  a  crime  for  either  party,  without 
sufficient  or  just  excuse  or  notice,  to  disregard  the  terms 
of  such  contract  or  to  refuse  to  perform  it."2 

In  other  words,  where  criminal  liability  for  breach  of  a 
contract  of  service  is  clearly  not  imposed  for  the  purpose  of 
compelling  the  fulfillment  of  the  contract  for  the  benefit  of 
the  employer,  but  is  imposed  in  order  to  protect  the  public 
or  in  order  to  prevent  an  injury  which  would  concern  the 
public,  it  should  not  be  considered  as  an  instrument  of 
involuntary  servitude,  but  as  a  legitimate  police  regulation. 3 

1  Robertson  v.  Baldwin  (1897)  165  U.  S.  275. 

2  Adair  ?.  United  States  (1908)  208  U.  S.  161,  175. 

3  A  fair  example  of  such  statutes  is  found  in  the  New  York  Penal  Law, 
sec.  1910:  "A  person,  who  wilfully  and  maliciously,  either  alone  or  in 
combination  with  others,  breaks  a  contract  of  service  or  hiring,  knowing, 
or  having  reasonable  cause  to  believe,  that  the  probable  consequence  of 
his  so  doing  will  be  to  endanger  human  life,  or  to  cause  grievous  bodily 
injury,  or  to  expose  valuable  property  to  destruction  or  serious  injury, 
is  guilty  of  a  misdemeanor."    In  Freund's  Police  Power,  sec.  452,  it  is 
said,  "We  may  then  conclude  that  in  a  business  affected  with  a  public 
interest  the  violation  of  a  contract  of  service  which  is  essential  to  the 
carrying  on  of  the  business,  may,  as  a  matter  of  constitutional  power,  be 
punished." 


CHAPTER  XXVII 

THE  PROVISIONS  OF  THE  FOURTEENTH  AMENDMENT 

§223.  Provisions  with  Regard  to  Citizenship.  Although 
the  primary  purpose  of  the  Fourteenth  Amendment  was 
undoubtedly,  like  that  of  the  Thirteenth,  to  safeguard  the 
negro  in  his  new  status  of  a  freeman,  its  actual  scope  is 
vastly  wider  than  that,  and  its  effect  has  been  very  far 
reaching.  Its  first  clauses  have  to  do  with  a  definition  of 
citizenship  and  with  the  safeguarding  of  certain  rights  of 
citizens,  as  follows : 

"All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States,  and  of  the  State  wherein  they  reside. 
No  State  shall  make  or  inforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States." 

These  provisions  have  been  fully  dealt  with  in  the  chapter 
dealing  with  citizenship,  and  the  reader  is  referred  to  that 
discussion. x 

§224.  The  Due  Process,  and  Equal  Protection  Clauses. 
After  the  clauses  with  regard  to  citizenship,  the  Fourteenth 
Amendment  continues  as  follows:  "Nor  shall  any  State 
deprive  any  person  of  life,  liberty  or  property,  without  due 
process  of  law;  nor  deny  to  any  person  within  its  juris- 
diction the  equal  protection  of  the  laws. ' '  These  provisions 
and  their  interpretation,  which  have  come  to  play  so  impor- 
tant a  part  in  our  system  of  Constitutional  law,  are  con- 
sidered in  detail  in  the  next  six  chapters. 

§225.    These  Prohibitions  Are  Directed  A  gainst  State  Action. 

'See  Chap.  II. 

502 


§  225   THE  FOURTEENTH  AMENDMENT      503 

It  is  important  to  notice  here,  at  the  outset,  that  we  have 
in  the  clauses  just  quoted  prohibitions  directed  solely 
against  the  States.1  "It  is  state  action  of  a  particular 
character  that  is  prohibited.  Individual  invasion  of 
individual  rights  is  not  the  subject  matter  of  the  amend- 
ment." A  person  is  entitled  to  redress  against  "the  oper- 
ation of  state  laws,  and  the  action  of  state  officers,  executive 
or  judicial,  when  these  are  subversive  of  the  fundamental 
rights  specified  in  the  amendment."2  The  prohibitions  are 
directed  against  actions  by  the  States  by  whatever  agency 
they  are  consummated.  Speaking  of  the  equal  protection 
clause,  the  Supreme  Court  has  said: 

"A  State  acts  by  its  legislative,  its  executive,  or  its 
judicial  authorities.  It  can  act  in  no  other  way.  The 
constitutional  provision,  therefore,  must  mean  that  no 
agency  of  the  State,  or  of  the  officers  or  agents  by  whom 
its  powers  are  exerted,  shall  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws."3 

And  persons  may  claim  the  protection  of  the  Fourteenth 
Amendment  against  acts  of  state  officers  which  are  made 
possible  by  their  official  positions,  though  not  authorized 
by,  or  though  actually  contrary  to  state  laws. 

"The  theory  of  the  amendment  is  that  when  an  officer 
or  other  representative  of  a  State,  in  the  exercise  of  the 
authority  with  which  he  is  clothed,  misuses  the  power 
possessed  to  do  a  wrong  forbidden  by  the  amendment, 
inquiry  concerning  whether  the  State  has  authorized  the 
wrong  is  irrelevant,  and  the  federal  judicial  power  is 

1  While  the  Fourteenth  Amendment  does  not  apply  to  the  federal 
government,  the  Fifth  Amendment,  which  applies  exclusively  to  the 
federal  government,  provides  that,  "No  person  shall  ...  be  deprived 
of  life,  liberty  or  property,  without  due  process  of  law;  nor  shall  private 
property  be  taken  for  public  use  without  just  compensation."  See 
Chap.  17. 

3  Civil  Rights  Cases  (1883)  109  U.  S.  3,  1 1.  See  also  Hodges  v.  United 
States  (1906)  203  U.  S.  i. 

3  Ex  parte  Virginia  (1880)  100  U.  S.  339,  347. 


504  THE  AMERICAN  CONSTITUTION  §§226,227 

competent  to  afford  redress  for  the  wrong  by  dealing 
with  the  officer  and  the  result  of  his  exertion  of  power."1 

When  one  is  deprived  of  his  property  by  the  judgment  of  a 
state  court,  which  is  without  jurisdiction,  he  is  deprived 
of  his  property  without  due  process  of  law, 2  but  an  erroneous 
judgment  in  a  case  of  which  a  state  court  has  jurisdiction 
does  not  constitute  lack  of  due  process.3 

§226.  Apportionment  of  Representatives.  The  provisions 
with  regard  to  citizenship,  due  process  and  equal  protection, 
are  all  contained  in  the  first  section  of  the  Fourteenth 
Amendment  to  the  Constitution  of  the  United  States,  but 
that  amendment  also  contains  four  other  sections.  Sec- 
tion two  deals  with  apportionment  of  representatives  in 
Congress,  and  is  considered  in  connection  with  the  dis- 
cussion of  that  subject.4 

§227.  Political  Disabilities.  Section  three  of  the  Four- 
teenth Amendment  is  as  follows : 

"No  person  shall  be  a  Senator  or  Representative  in 
Congress,  or  elector  of  President  and  Vice-President,  or 
hold  any  office,  civil  or  military,  under  the  United 
States,  or  under  any  State,  who,  having  previously  taken 
an  oath,  as  a  member  of  Congress,  or  as  an  officer  of  the 
United  States,  or  as  a  member  of  any  State  Legislature,  or 
as  an  executive  or  judicial  officer  of  any  State,  to  support 
the  Constitution  of  the  United  States,  shall  have  engaged 
in  insurrection  or  rebellion  against  the  same,  or  given  aid 
or  comfort  to  the  enemies  thereof.  But  Congress  may, 
by  a  vote  of  two  thirds  of  each  House,  remove  such 
disability." 

Many  of  those  who  held  positions  of  leadership  in  the 
Confederacy  had  held  public  offices  before  the  southern 
States  seceded,  and  had  in  assuming  such  offices  taken  an 

1  Home  Telephone  Co.  v.  City  of  Los  Angeles  (1913)  227  U.  S.  278,  287. 

2  Scott  v.  McNeal  (1894)  154  U.  S.  34,  46:  "No  judgment  of  a  court 
is  due  process  of  law,  if  rendered  without  jurisdiction  in  the  court,  or 
without  notice  to  the  party. "    See  Chap.  29. 

3  Arrowsmith  v.  Harmoning  (1886)  1 18  U.  S.  194.  <  Sec.  63. 


§§228, 229  THE  FOURTEENTH  AMENDMENT  505 

oath  to  support  the  Constitution  of  the  United  States.  It 
was  felt  that  they  had  violated  such  oath  when  they  joined 
the  Confederacy,  and  that  they  should  not  again  be  allowed 
to  assume  positions  of  leadership  in  affairs  of  the  nation  or 
of  the  States,  except  by  special  action  of  Congress. 

§228.  Financial  Obligations  Arising  Out  of  the  Civil  War. 
The  Civil  War  had  put  the  national  government  under  a 
very  heavy  debt.  The  northern  States  feared  that  the 
States  which  had  joined  the  Confederacy  might,  attempt 
through  their  representatives  in  Congress  when  again  re- 
turned to  a  full  share  in  the  direction  of  national  affairs,  to 
repudiate  this  national  debt.  They  also  feared  that  an 
effort  would  be  made  to  saddle  the  nation  with  claims  for 
the  emancipation  of  slaves,  which  would  have  added 
immensely  to  its  financial  burden.  Finally  they  felt  that 
the  debts  which  had  been  incurred  for  the  support  of  the 
Confederacy  should  be  entirely  outlawed,  and  that  those 
who  had  contributed  to  the  support  of  the  rebellion  should 
bear  the  loss  resulting  from  its  failure.  With  these  purposes 
in  mind  the  fourth  section  of  the  amendment  was  adopted, 
as  follows : 

"The  validity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment 
of  pensions  and  bounties  for  services  in  suppressing 
insurrection  and  rebellion,  shall  not  be  questioned.  But 
neither  the  United  States  nor  any  State  shall  assume  or 
pay  any  debt  or  obligation  incurred  in  aid  of  insurrection 
or  rebellion  against  the  United  States,  or  any  claim  for 
the  loss  or  emancipation  of  any  slave ;  but  all  such  debts, 
obligations,  and  claims  shall  be  held  illegal  and  void." 

§229.  Enforcement  of  the  Amendment  by  Congress.  By 
section  five  of  the  Fourteenth  Amendment  it  is  provided 
that,  "The  Congress  shall  have  power  to  enforce  by  appro- 
priate legislation  the  provisions  of  this  article/'  The  power 
given  to  Congress  by  this  section  is  discussed  in  another 
chapter. x 

1  See  sec.  160. 


CHAPTER   XXVIII 

MEANING  OF  THE  DUE  PROCESS  CLAUSE 

§230.  Due  Process  in  English  Law.  In  our  attempt  to 
determine  what  due  process  is,  and  what  limitations  the  due 
process  clause  of  the  Fourteenth  Amendment  puts  upon 
state  action,  it  may  first  be  convenient  to  dispose  of  certain 
erroneous  conceptions  of  the  meaning  of  due  process.  In 
Magna  Charta  it  was  provided  that 

"no  freeman  shall  be  arrested,  or  detained  in  prison,  or 
deprived  of  his  freehold,  or  outlawed  or  banished,  or  in 
any  way  molested;  and  we  will  not  set  forth  against  him, 
nor  send  against  him,  unless  by  the  lawful  judgment 
of  his  peers  and  by  the  law  of  the  land." 

By  the  middle  of  the  next  century  the  enactments  of 
Edward  III,  made  for  the  further  protection  of  his  subjects : 
began  to  read  "by  due  process  of  law"  instead  of  "by  the 
law  of  the  land,"  and  in  the  Petition  of  Rights,  of  Charles 
First's  day,  it  is  prayed  "that  freemen  be  imprisoned  or 
detained  only  by  the  law  of  the  land,  or  by  due  process  of 
law,  and  not  by  the  King's  special  command  without  any 
charge."  In  English  law  the  two  expressions  seem  to  have 
the  same  meaning.  *  These  provisions  were  directed  to  the 
actions  of  kings  and  were  meant  as  protections  against 
kings ;  and  it  was  thought  a  sufficient  protection  if  the  king 
was  prevented  from  acting  arbitrarily,  and  was  compelled  to 
act  only  in  accordance  with  laws  existing  or  duly  enacted. 
No  limitations  were  put  upon  the  powers  of  Parliament;  it 
was  merely  provided  that  persons  should  not  be  deprived  of 

1  For  an  excellent  sketch  of  the  development  of  these  terms  in  English 
law  see  Taylor's  Due  Process  of  Law,  sees.  I  to  9. 

506 


§  23i         MEANING  OF  DUE  PROCESS  507 

their  liberty  or  property  except  in  accordance  with  the  law 
of  the  land,  that  is,  in  accordance  with  the  process  of  duly 
established  law. 1  If  the  same  significance  had  been  attached 
to  the  phrase  "due  process  of  law"  in  our  Fifth  and  Four- 
teenth Amendments,  as  was  attached  to  it  by  the  English 
law,  our  due  process  clauses  would  only  have  limited  the 
powers  of  our  federal  and  state  executives,  together  with  our 
courts  in  case  the  latter  attempted  to  act  without  legal 
jurisdiction;  but  would  have  put  no  limitations  upon 
legislative  power. 

§231.  Legislation  Does  Not  Necessarily  Constitute  Due 
Process.  Although  the  Fifth  Amendment,  which  was 

1  "It  were  endless  to  enumerate  all  the  affirmative  acts  of  Parliament 
wherein  justice  is  directed  to  be  done  according  to  the  law  of  the  land; 
and  what  that  law  is  every  subject  knows,  or  may  know  if  he  pleases; 
for  it  depends  not  upon  the  arbitrary  will  of  any  judge;  but  is  permanent, 
fixed  and  unchangeable,  unless  by  authority  of  Parliament.  .  .  .  Not 
only  the  substantial  part,  or  judicial  decisions,  of  the  law,  but  also  the 
formal  part,  or  method  of  proceeding  cannot  be  altered  but  by  Par- 
liament." I  Black.  Com.  141. 

"  It  is  easy  to  see  that  when  the  great  barons  of  England  wrung  from 
King  John,  at  the  point  of  the  sword,  the  concession  that  neither  their 
lives  nor  their  property  should  be  disposed  of  by  the  crown,  except  as 
provided  by  the  law  of  the  land,  they  meant  by  'law  of  the  land'  the 
ancient  and  customary  laws  of  the  English  people,  or  laws  enacted  by 
the  Parliament  of  which  those  barons  were  a  controlling  element.  It 
was  not  in  their  minds,  therefore,  to  protect  themselves  against  the 
enactment  of  laws  by  the  Parliament  of  England."  Davidson  v.  New 
Orleans  (1877)  96  U.  S.  97,  102. 

"The  concessions  of  Magna  Charta  were  wrung  from  the  King  as 
guaranties  against  the  oppressions  and  usurpations  of  his  prerogative. 
It  did  not  enter  the  minds  of  the  barons  to  provide  security  against  their 
own  body  or  in  favor  of  the  Commons  by  limiting  the  power  of  Par- 
liament; so  that  bills  of  attainder,  ex  post  facto  laws,  laws  declaring  for- 
feitures of  estates,  and  other  arbitrary  acts  of  legislation  which  occur  so 
frequently  in  English  history,  were  never  regarded  as  inconsistent  with 
the  law  of  the  land;  for  notwithstanding  what  was  attributed  to  Lord 
Coke  in  Banham's  Case,  8  Rep.  115,  n8a,  the  omnipotence  of  Parlia- 
ment over  the  common  law  was  absolute,  even  against  common  right 
and  reason.  The  actual  and  practical  security  for  English  liberty  against 
legislative  tyranny  was  the  power  of  a  free  public  opinion  represented 
by  the  Commons."  Hurtado  v.  California  (1884)  no  U.  S.  516,  531. 


508       THE  AMERICAN  CONSTITUTION     §  231 

adopted  in  1791,  contains  the  provision  that  "No  person 
shall  ...  be  deprived  of  life,  liberty,  or  property  without 
due  process  of  law,"1  this  clause  did  not  come  before  the 
Supreme  Court  for  interpretation  until  the  case  of  Murray 
v.  Hoboken  Land  and  Improvement  Company,2  in  1855.  In 
that  case  the  court  said3: 

"The  words,  'due  process  of  law,'  were  undoubtedly 
intended  to  convey  the  same  meaning  as  the  words,  '  by 
the  law  of  the  land*  in  Magna  Charta.  Lord  Coke,  in 
his  commentary  on  those  words  (2  Inst.  50),  says  they 
mean  due  process  of  law.  The  constitutions  which  had 
been  adopted  by  the  several  States  before  the  formation 
of  the  federal  constitution,  following  the  language  of  the 
Great  Charter  more  closely,  generally  contained  the  words 
'but  by  the  judgment  of  his  peers,  or  the  law  of  the 
land.'4  The  ordinance  of  Congress  of  July  13,  1787,  for 
the  government  of  the  territory  of  the  United  States 
northwest  of  the  River  Ohio,  used  the  same  words." 

This  paragraph,  if  taken  by  itself,  would  justify  the  con- 
clusion that  the  constitutional  provisions  as  to  due  process 
require  only  that  the  process  be  in  conformity  with  the 
provisions  of  the  law,  and  put  no  restrictions  upon  legis- 
lative power.  However,  the  court  very  quickly  dispels  this 
impression  when  it  goes  on  to  say : 

"That  the  warrant  now  in  question  is  legal  process,  is 
not  denied.  It  was  issued  in  conformity  with  an  act  of 
Congress.  But  is  it  'due  process  of  law'?  The  Con- 
stitution contains  no  description  of  those  processesjwhich 
it  was  intended  to  allow  or  forbid.  It  does  not  even 

1  As  we  have  seen  (supra,  sec.  148)  this  provision  applies  only  to  the 
federal  government,  while  the  Fourteenth  Amendment  applies  to  the 
States,  but  on  the  point  now  under  consideration  that  distinction  is  of 
no  importance. 

2 1 8  Howard  272.  3  Ibid.,  276. 

« A  summary  of  these  provisions  in  the  state  constitutions  adopted 
at  the  time  of  the  Revolution  will  be  found  in  Taylor's  Due  Process  of 
Law,  sec.  II. 


§  231         MEANING  OF  DUE  PROCESS  509 

declare  what  principles  are  to  be  applied  to  ascertain 
whether  it  be  due  process.  It  is  manifest  that  it  was  not 
left  to  the  legislative  power  to  enact  any  process  which 
might  be  devised.  The  article  is  a  restraint  on  the  legis- 
lative as  well  as  on  the  executive  and  judicial  powers  of 
the  government,  and  cannot  be  so  construed  as  to  leave 
Congress  free  to  make  any  process  'due  process  of  law/ 
by  its  mere  will." 

It  is  interesting  that,  while  there  was  very  little  discussion 
of  the  due  process  clause  of  the  Fifth  Amendment  during 
three-quarters  of  a  century  after  its  adoption,  the  Four- 
teenth Amendment  had  hardly  been  ratified  when  state 
legislation  began  to  be  attacked  as  violative  of  due  process. 
It,  therefore,  became  necessary  for  the  Supreme  Court  to 
determine  whether,  when  a  person  was  deprived  of  life, 
liberty,  or  property  in  conformity  with  state  legislation,  he 
could  be  said  to  be  deprived  "without  due  process  of  law." 
In  1877  that  court  said, 

"when,  in  the  year  of  grace  I866,1  there  is  placed  in  the 
Constitution  of  the  United  States  a  declaration  that  'no 
State  shall  deprive  any  person  of  life,  liberty,  or  property 
without  due  process  of  law,'  can  a  State  make  any  thing 
due  process  of  law  which,  by  its  own  legislation,  it  chooses 
to  declare  such?  To  affirm  this  is  to  hold  that  the  pro- 
hibition to  the  States  is  of  no  avail,  or  has  no  application 
where  the  invasion  of  private  rights  is  effected  under  the 
forms  of  state  legislation."2 

A  few  years  later  the  Court  stated  its  opinion  on  this  point 
even  more  succinctly3: 

"In  this  country  written  constitutions  were  deemed 
essential  to  protect  the  rights  and  liberties  of  the  people 
against  the  encroachments  of  power  delegated  to  their 

1  The  amendment  was  proposed  in  1866  but  not  ratified  by  three 
fourths  of  the  States  until  1868. 

2  Davidson  v.  New  Orleans  (1877)  96  U.  S.  97,  102. 

3  Hurtado  v.  California  (1884)  no  U.  S.  516,  531. 


510       THE  AMERICAN  CONSTITUTION     §  232 

governments,  and  the  provisions  of  Magna  Charta  were 
incorporated  into  Bills  of  Rights.  They  were  limitations 
upon  all  the  powers  of  government,  legislative  as  well  as 
executive  and  j  udicial . " x  i 

§232.     Due  Process  Need  Not  Conform  to  Past  Usage.   In 

Murray  v.  Hoboken  Land  and  Improvement  Company2  the 
court  was  asked  to  declare  unconstitutional  a  federal  statute 
which  provided  for  summary  action  against  a  collector  of 
customs  for  a  balance  due.  After  declaring,  as  we  have 
seen,  that  the  due  process  clause  was  meant  to  be  a  limi- 
tation upon  legislative  power,  the  court  asked, 

"To  what  principles,  then,  are  we  to  resort  to  ascertain 
whether  this  process,  enacted  by  Congress,  is  due  process? 
To  this  the  answer  must  be  twofold.  We  must  examine 
the  Constitution  itself,  to  see  whether  this  process  be  in 
conflict  with  any  of  its  provisions.  If  not  found  to  be  so, 
we  must  look  to  those  settled  usages  and  modes  of  pro- 
ceeding existing  in  the  common  and  statute  law  of  Eng- 
land, before  the  emigration  of  our  ancestors,  and  which 
are  shown  not  to  have  been  unsuited  to  their  civil  and 
political  conditions  by  having  been  acted  on  by  them  after 
the  settlement  of  this  country."3 

The  court  concluded  that  the  sort  of  summary  proceeding 
provided  for  by  the  federal  statute  was  in  accordance  with 
such  "settled  usages  and  modes  of  proceeding"  under 
similar  circumstances.  In  Hurtado  v.  California*  it  was 
contended  "that  any  process  otherwise  authorized  by  law, 
which  is  not  thus  sanctioned  by  usage,  or  which  supercedes 
and  displaces  one  that  is,  cannot  be  regarded  as  due  pro- 
cess." The  court  emphatically  denied  that  this  was  the 
force  of  its  earlier  decision.  To  put  such  an  interpretation 
upon  the  due  process  clause  "would  be  to  deny  every 
quality  of  the  law  but  its  age,  and  to  render  it  incapable 

1  For  a  criticism  of  this  interpretation  due  process  clauses  see  Reeder's 
Validity  of  Rate  Regulation,  chaps.  3  and  4. 

2  (1855)  18  Howard  272.  '  Ibid.,  276. 
4  (1884)  no  U.  S.  516,  528. 


§  233         MEANING  OF  DUE  PROCESS  511 

of  progress  and  improvement."  The  court  declared  that  in 
its  earlier  decision  it  had  simply  held  that  legislation  which 
did  conform  to  "settled  usages  and  modes  of  proceeding" 
could  not  be  said  to  be  lacking  in  due  process,  but  that  it 
had  not  held  that  no  legislation  would  constitute  due  process 
which  did  not  so  conform.1 

§233.  Essential  Significance  of  Due  Process.  In  one  of 
the  earlier  cases2  under  the  Fourteenth  Amendment  the 
Supreme  Court,  commenting  upon  the  lack  of  constitutional 
definition  of  due  process,  recognized  the  advantages  that 
would  result  from  a  full  definition  of  those  words,  if  it  were 
possible  to  give  a  definition  which  would  be  correct  and 
exhaustive.  It  was  held,  however,  that  this  was  not 
practicable,  the  court  .expressing  its  view  of  the  proper 
course  in  those  words  so  often  quoted, 

"  there  is  wisdom,  we  think,  in  the  ascertaining  of  the 
intent  and  application  of  such  an  important  phrase  in  the 
Federal  Constitution,  by  the  gradual  process  of  judicial 
inclusion  and  exclusion,  as  the  cases  presented  for  decision 
shall  require,  with  the  reasoning  on  which  such  decisions 
may  be  founded."3 

And  yet,  though  the  court  has  continued  to  disclaim  any 
intention  to  frame  a  comprehensive  definition  of  due  process 
it  has,  at  least,  given  us,  for  our  guidance,  a  general  descrip- 
tion of  the  nature  of  due  process,  and  of  the  principles  which 
guide  the  court  in  its  "gradual  process  of  judicial  inclusion 
and  exclusion."  In  Hurtado  v.  California*  the  court 
stated  its  general  views  on  due  process  as  follows : 

1  Following  the  case  just  discussed,  the  Supreme  Court  again  declared 
in  Twining  v.  New  Jersey  (1908)  211  U.  S.  78,  101 :  "  It  does  not  follow, 
however,  that  a  procedure  settled  in  English  law  at  the  time  of  the  emi- 
gration, and  brought  to  this  country  and  practiced  by  our  ancestors,  is 
an  essential  element  of  due  process  of  law.    If  that  were  so  the  procedure 
of  the  first  half  of  the  seventeenth  century  would  be  fastened  upon  the 
American  jurisprudence  like  a  straight  jacket,  only  to  be  unloosed  by 
constitutional  amendment." 

2  Davidson  v.  New  Orleans  (1877)  96  U.  S.  97. 

s  Ibid.,  104.  4(1884)  1 10  U.S.  516,535. 


512        THE  AMERICAN  CONSTITUTION     §  234 

"  Due  process  of  law  in  the  latter  [the  Fifth  Amendment] 
refers  to  that  law  of  the  land  which  derives  its  authority 
from  the  legislative  powers  conferred  upon  Congress  by 
the  Constitution  of  the  United  States,  exercised  within 
the  limits  therein  prescribed,  and  interpreted  according 
to  the  principles  of  the  common  law.  In  the  Fourteenth 
Amendment,  by  parity  of  reason,  it  refers  to  that  law 
of  the  land  in  each  State,  which  derives  its  authority  from 
the  inherent  and  reserved  powers  of  the  State  exerted 
within  the  limits  of  those  fundamental  principles  of  liberty 
and  justice  which  lie  at  the  base  of  all  our  civil  and  politi- 
cal institutions,  and  the  greatest  security  for  which  resides 
in  the  right  of  the  people  to  make  their  own  laws  and 
alter  them  at  their  pleasure. ' ' l 

This  statement  has  been  paraphrased  in  later  cases  but  it 
has  not  been  improved  upon. a 

§234.  Meaning  of  "Life,"  " Liberty,"  and  " Property." 
The  term  "life"  hardly  needs  explanation,  but  it  has 
been  held  to  include  not  merely  animal  existence,  but 
the  retention  of  limbs  and  organs  by  which  life  is  en- 

1  It  is  interesting  to  note  that  in  1819  the  United  States  Supreme 
Court  had  made  the  following  comment  upon  a  provision  in  the  Mary- 
land Constitution:  "As  to  the  words  from  Magina  Charta,  incorporated 
into  the  Constitution  of  Maryland,  after  volumes  spoken  and  written 
with  a  view  to  their  exposition,  the  good  sense  of  mankind  has  at  last 
settled  down  to  this:  that  they  were  intended  to  secure  the  individual 
from  the  arbitrary  exercise  of  the  powers  of  government,  unrestrained  by 
the  established  principles  of  private  rights  and  distributive  justice." 
Bank  of  Columbia  v.  Ikeley,  4  Wheaton  235,  244.  See  also  Webster's 
definition  of  "law  of  the  land"  in  Dartmouth  College  t>.  Woodward 
(1819)  4  Wheaton  518,  581,  which  is  often  quoted. 

3  "  The  clause  in  question  means,  therefore,  that  there  can  be  no  pro- 
ceeding against  life,  liberty,  or  property  which  may  result  in  the  depriva- 
tion of  either,  without  the  observance  of  those  general  rules  established 
in  our  system  of  jurisprudence  for  the  security  of  private  rights. ' '  Hogan 
v.  Reclamation  District  (1884)  in  U.  S.  701,  708.  "It  is  sufficient  to 
say  that  there  are  certain  immutable  principles  of  justice  which  inhere 
in  the  very  idea  of  free  government  which  no  member  of  the  Union  may 
disregard."  Holden  v.  Hardy  (1898)  169  U.  S.  366,  389. 

See  also  Twining  v.  New  Jersey  (1908)  21 1  U.  S.  78,  101. 


§  235         MEANING  OF  DUE  PROCESS  513 

joyed.1  The  liberty  which  is  protected  by  the  Fourteenth 
Amendment  is  more  than  liberty  of  person. 

"The  term  is  deemed  to  embrace  the  right  of  the  citizen 
to  be  free  in  the  engagement  of  all  his  faculties;  to  be  free 
to  use  them  in  all  lawful  ways;  to  live  and  work  where  he 
will;  to  earn  his  livelihood  by  any  lawful  calling;  to  pur- 
sue any  livelihood  or  avocation;  and  for  that  purpose  to 
enter  into  all  contracts  which  may  be  proper,  necessary, 
and  essential  to  his  carrying  out  to  a  successful  conclusion 
the  purposes  above  mentioned."2 

On  the  other  hand  the  right  of  property  which  that  amend- 
ment protects  includes  the  right  to  use  property  for  any 
lawful  purpose,  and  to  acquire  property  by  any  lawful 
means. 3 

§235.  Notice  and  Hearing  as  Elements  of  Due  Process. 
It  is  a  principle  applicable  to  most  circumstances  that  due 
process  requires  notice  and  an  opportunity  to  be  heard, 
before  a  person  shall  be  deprived  of  life,  liberty,  or  property. 

"  Undoubtedly,  where  life  and  liberty  are  involved,  due 
process  requires  that  there  be  a  regular  course  of  judicial 
proceedings,  which  imply  that  the  party  to  be  affected 
shall  have  notice  and  an  opportunity  to  be  heard ;  so,  also, 
where  title  or  possession  of  property  is  involved."4 

It  is  certainly  true  that  a  person  may  not  generally  be  de- 
prived of  life  or  of  personal  liberty  by  the  authority  of  the 
State  without  personal  notice,  and  a  hearing,  ordinarily  held 
before  a  judicial  tribunal.  This,  of  course,  applies  to 
criminal  prosecutions.5  It  also  applies  to  proceedings  for 
the  determination  of  a  person's  sanity. 6  In  accord  with  the 

1  Munn  v.  Illinois  (1876)  94  U.  S.  113, 142;  Bertholf  v.  O'Reilly  (1878) 
74  N.  Y.  509,  515. 

aAllgeyer  v.  Louisiana  (1897)  168  U.  S.  578.  Compare  Shattuck, 
"The  Meaning  of  the  Term  'Liberty'  in  Federal  and  State  Constitu- 
tions," 4  Harv.  L.  Rev.  365. 

3  Holden  v.  Hardy  (1898)  169  U.  S.  366. 

*  Hagar  v.  Reclamation  District  (1884)  in  U.  S.  701,  708. 

s  See  sec.  247.  6  Simon  v.  Craft  (1901)  182  U.  S.  427. 

33 


•514        THE  AMERICAN  CONSTITUTION     §  236 

general  principle  as  to  notice  and  hearing  it  seems  that  an 
alien  may  not  be  deported  without  some  notice  and  an 
opportunity  to  be  heard,1  though  the  proceedings  may  be 
conducted  by  an  administrative  officer  instead  of  a  court. 2 
So  a  defendant  brought  before  a  court  upon  due  notice  may 
not  have  judgment  rendered  against  him  without  an 
opportunity  to  present  a  defense  and  support  it  by  evidence.  3 

But  under  the  constitutional  provision  adopted  for  that 
purpose  the  executive  of  a  State  may  extradite  a  person  as  a 
fugitive  from  justice  upon  requisition  without  any  notice  or 
hearing.4  It  is  also  constitutional  for  a  governor  in  time 
of  public  danger  caused  by  insurrection,  to  call  out  the 
National  Guard  and  to  direct  that  persons  resisting  be 
killed  or  imprisoned,  as  long  as  he  acts  in  good  faith.5 
Furthermore,  as  we  shall  see  a  little  later,  there  are  circum- 
stances under  which  property  may  be  taken  for  taxes  with- 
out any  notice  or  hearing6;  and  under  the  police  power  the 
use  and  acquisition  of  property,  and  the  return  which  may 
be  received  from  it,  may  be  limited,  also  without  notice  or 
an  opportunity  to  be  heard. 7 

§236.  Persons  Protected.  It  should  also  be  born  in  mind 
that  the  protection  afforded  by  the  due  process  clause  of  the 
Fourteenth  Amendment  is  not  confined  to  citizens,  but, 
extends  to  "any  person."  In  the  case  of  Yick  Wo  v. 
Hopkins8  the  court  said, 

"The  rights  of  the  petitioners,  as  affected  by  the  pro- 
ceedings of  which  they  complain,  are  not  less,  because 
they  are  aliens  and  subjects  of  the  Emperor  of  China. 
.  .  .  The  Fourteenth  Amendment  to  the  Constitution  is 

1  The  Japanese  Immigrant  Case  (1903)    189  U.  S.  86. 

2  When  an  executive  officer  or  tribunal  has  constitutional  authority 
to  affect  a  person  in  his  liberty  or  property,  the  proceeding  is  not  without 
due  process  because  not  held  before  a  judicial  tribunal.     See  sec.  156. 

3  Hovey  v.  Elliott  (1897)  167  U.  S.  409. 

4  Marbles  v.  Creecy  (1909)  215  U.  S.  63.    As  to  interstate  extradition 
see  chap.  205. 

s  Moyer  v.  Peabody  (1909)  212  U.  S.  78. 

6  Sec.  259.  7  See  chap.  32.  8  (1886)  118  U.  S.  357,  368. 


§  236         MEANING  OF  DUE  PROCESS  515 

not  confined  to  the  protection  of  citizens.  [Quoting  the 
due  process  and  equal  protection  clauses.]  These  provi- 
sions are  universal  in  their  application,  to  all  persons 
within  the  territorial  jurisdiction, x  without  regard  to  any 
differences  of  race,  of  color,  or  of  nationality." 

It  is 

"now  settled  that  corporations  are  persons  within  the 
meaning  of  the  constitutional  provisions  forbidding  the 
deprivation  of  property  without  due  process  of  law,  as 
well  as  a  denial  of  the  equal  protection  of  the  laws. ' ' 2 

The  provision  that  a  person  shall  not  be  deprived  of  life 
without  due  process  of  law  seems  clearly  applicable  to 
natural  persons  only.  Although  the  liberty  which  is 
protected  by  the  Fourteenth  Amendment  is  not  only  liberty 
of  person  but  liberty  of  action, 3  it  has  been  declared  that, 
"  The  liberty  referred  to  in  that  amendment  is  the  liberty  of 
natural,  not  artificial  persons."4  But,  since  the  rule 
against  depriving  a  person  of  property  without  due  process 
of  law  has  been  declared  to  include  depriving  him  of  the 
right  to  acquire  property  and  to  contract  with  regard  to 
property,5  corporations  are  adequately  protected  under  this 
part  of  the  due  process  clause. 

1  As  a  matter  of  fact  the  limitation  to  persons  within  the  jurisdiction 
of  the  State  is  found  only  in  the  equal  protection  clause. 

a  Covington  Turnpike  Co.  v.  Sandford  (1896)  164  U.  S.  578,  592. 

3  Allgeyer  v.  Louisiana  (1897)  165  U.  S.  578. 

4  Northwestern  Life  Ins.  Co.  v.  Riggs  (1906)  203  U.  S.  243,  255.    This 
is  restated  in  Western  Turf  Assoc.  v.  Greenberg  (1907)  204  U.  S.  359, 363. 

sHolden  v.  Hardy  (1898)  169  U.  S.  366,  391. 


CHAPTER  XXIX 

DUE  PROCESS  IN  JUDICIAL  PROCEEDINGS 

§237.  In  Actions  in  Personam  There  Must  Be  Jurisdiction 
of  the  Subject- Matter  and  of  the  Defendant.  Let  us  now  con- 
sider what  is  due  process  in  judicial  proceedings.1  A  prime 
requisite  of  due  process  is,  of  course,  that  the  court  shall 
have  jurisdiction  of  the  subject-matter.  "To  give  such 
proceedings  any  validity,  there  must  be  a  tribunal  com- 
petent by  its  constitution — that  is,  by  the  law  of  its  creation 
— to  pass  upon  the  subject-matter  of  the  suit."2  In  pro- 
ceedings in  personam — proceedings  to  determine  the 
personal  liability  of  the  defendant,  no  property  being 
brought  by  the  proceedings  within  the  control  of  the  court — 
the  court  must  also  have  jurisdiction  of  the  defendant. 

§238.  Jurisdiction  of  Non-residents.  Attempts  have 
repeatedly  been  made  to  take  jurisdiction  of  non-resident 
defendants  through  service  by  publication  or  through  per- 
sonal service  made  outside  of  the  State  in  which  the  action 
is  brought.  The  Supreme  Court  has  held  that  such  pro- 
cedure does  not  give  jurisdiction  of  the  non-resident,  for  a 
State  cannot  in  that  way  extend  its  jurisdiction  beyond  its 
territorial  limits.  The  defendant  "must  be  brought  within 
its  jurisdiction  by  service  of  process  within  the  State,  or  by 
his  voluntary  appearance."3 

§239.  Requirement  that  Foreign  Corporations  Appoint 
Agents  to  Receive  Service.  Since  a  State  may  exclude  a 

1  See  the  previous  discussion  in  chap.  23  as  to  full  faith  and  credit  due 
in  each  State  to  the  judgments  rendered  in  other  States. 

a  Pennoyer  v.  Neff  (1877)  95  U.  S.  714,  733. 

slbid.;  Harkness  v.  Hyde  (1878)  98  U.  S.  476;  Wilson  v.  Seligman 
(1892)  144  U.  S.  41;  Riverside  &  Dan  River  Cotton  Mills  v.  Menefee 
(1915)  237  U.  S.  189. 

516 


§  240  JUDICIAL  PROCEEDINGS  517 

foreign  corporation  (except  when  it  desires  to  engage  in 
interstate  commerce  or  to  act  in  the  State  for  the  federal 
government)1  it  may  compel  such  corporation  as  a  condi- 
tion of  entrance  to  appoint  an  agent  in  the  State  upon  whom 
service  may  be  made,  and  such  service  will  give  juris- 
diction.2 The  statute  may,  however,  simply  provide  that 
if  a  corporation  does  business  in  the  State  service  may  be 
made  upon  one  of  its  agents  in  the  State,  or  upon  a  State 
officer.  Such  statutes  have  been  upheld  either  upon  the 
theory  of  implied  consent  to  such  service,3  or  upon  the 
theory  that  the  corporation,  having  voluntarily  come  into 
the  State  to  do  business  there,  is  bound  by  the  State's 
reasonable  regulations  of  such  business.4  It  has  also  been 
held  that  to  require  a  corporation  engaged  in  interstate 
commerce  to  appoint  an  agent  upon  whom  service  may  be 
made  in  controversies  arising  within  the  State  is  not  an 
unreasonable  burden  upon  interstate  commerce5;  but,  if 
the  statute  attempts  to  compel  such  a  corporation  to  subject 
itself  to  the  jurisdiction  of  the  State  courts  in  all  controver- 
sies wherever  arising,  this  would  probably  be  held  to  burden 
interstate  commerce  unreasonably. 6 

§240.  Requirement  that  Non-resident  Natural  Persons 
Appoint  Agents  to  Receive  Service.  Under  the  "privileges 
and  immunities"  clause  of  Article  Four  of  the  Constitution 
a  natural  person,  a  citizen  of  one  of  the  States,  cannot  be 
excluded  from  doing  business  in  any  other  State. 7  A  Ken- 
tucky statute  provides  that 

"in  actions  against  an  individual  residing  ,in  another 
State  .  .  .  engaged  in  business  in  this  State,  the  summons 

1  Sec.  206. 

3  Pennsylvania  F.  Ins.  Co.  v.  Gold  Issue  Mining  &  Milling  Co.  (1917) 
243  U.  S.  93- 

3  Lafayette  Ins.  Co.  v.  French  (1855)  18  Howard  404. 

4Smolik  v.  Philadelphia  &  R.  Coal  &  Iron  Co.  (1915)  222  Fed.  148, 
approved  in  Pennsylvania  Fire  Ins.  Co.  v.  Gold  Issue  Min.  &  Mill.  Co. 

(1917)  243  u.  s.  93. 

s  International  Harvester  Co.  v.  Kentucky  (1914)  234  U.  S.  579. 
« See  Sioux  Remedy  Co.  v.  Cope  (1914)  235  U.  S.  197. 
» See  chap.  24. 


5i 8        THE  AMERICAN  CONSTITUTION     §  240 

may  be  served  upon  the  manager,  or  agent  of,  or  person  in 
charge  of,  such  business  in  this  State,  in  the  county  where 
the  business  is  carried  on,  or  in  the  county  where  the 
cause  of  action  occurred."1 

Upon  a  cause  of  action  which  arose  in  Kentucky,  an  action 
was  brought  against  non-resident  partners  who  had  done 
business  in  Kentucky  through  W.  Flexner  as  their  agent,  pro- 
cess being  served  upon  W.  Flexner,  who  at  the  time  of  the 
service  had  ceased  to  be  such  agent.  Judgment  was  obtained 
in  Kentucky  and  sued  upon  in  Illinois,  where  the  court 
gave  judgment  for  the  defendant,  which  was  affirmed  by  the 
supreme  court  of  the  State.2  The  case  was  taken  to  the 
Supreme  Court  of  the  United  States  on  the  ground  that  full 
faith  and  credit  was  not  given  to  the  Kentucky  judgment. 
Justice  Holmes  in  his  brief  opinion  affirming  the  judgment  of 
the  Illinois  court  said.3 

"  It  is  argued  that  the  pleas  tacitly  admit  that  Washing- 
ton Flexner  was  agent  of  the  firm  at  the  time  of  the 
transaction  sued  upon  in  Kentucky,  and  the  Kentucky 
statute  is  construed  as  purporting  to  make  him  agent  to 
receive  service  in  suits  arising  out  of  the  business  done  in 
that  State.  On  this  construction  it  is  said  that  the 
defendants  by  doing  business  in  the  State  consented  to  be 
bound  by  the  service  prescribed.  The  analogy  of  suits 
against  insurance  companies  based  upon  such  service  is 
invoked.  Mutual  Reserve  Fund  Life  A  ssociation  v.  Phelps, 
190  U.  S.  147.  But  the  consent  that  is  said  to  be  implied 
in  such  cases  is  a  mere  fiction,  founded  upon  the  accepted 
doctrine  that  the  States  could  exclude  foreign  corpo- 
rations altogether,  and  therefore  could  establish  this 
obligation  as  a  condition  to  letting  them  in.  Lafayette 
Ins.  Co.  v.  French,  18  How.  404.  Pennsylvania  Fire  Ins. 
Co.  v.  Gold  Issue  Mining  and  Milling  Co.,  243  U.  S.  93,  96. 
The  State  had  no  power  to  exclude  the  defendants  and  on 

1  Kentucky  Civil  Code,  sec.  51  (6). 

2  Flexner  v.  Parson  (1915)  268  111.  435. 

3  Flexner  v.  Farson  (1919)  248  U.  S.  289. 


§  241  JUDICIAL  PROCEEDINGS  519 

that  ground  without  going  farther  the  Supreme  Court  of 
Illinois  rightly  held  that  the  analogy  failed,  and  that  the 
Kentucky  judgment  was  void.  If  the  Kentucky  statute 
purports  to  have  the  effect  attributed  to  it,  it  cannot  have 
that  effect  in  the  present  case.  New  York  Life  Ins.  Co.  v. 
Dunlevey,  241  U.  S.  518,  522,  523." 

Probably  the  justifiable  deduction  from  this  opinion  is  that, 
in  the  case  of  a  natural  person,  a  citizen  of  another  State, 
no  service  will  give  jurisdiction  except  personal  service 
within  the  State  or  voluntary  appearance,  unless  actually 
consented  to  by  the  defendant.  Yet  we  have  seen  that  a 
reasonable  regulation  as  to  service  of  process  upon  a  foreign 
corporation  entering  to  engage  in  interstate  commerce  may 
be  imposed,  though  the  corporation  cannot  be  excluded  from 
the  State.  Similarly,  a  regulation  as  to  natural  persons 
entering  to  do  business  within  the  State,  providing  for  serv- 
ice of  process  upon  an  agent  in  the  State  where  a  cause  of 
action  arises  within  the  State,  would  seem  not  to  deny  such 
persons  any  privilege  or  immunity  of  citizens  of  the  State, 
but  rather  to  put  them  on  an  equal  footing  with  such  citi- 
zens. In  Kane  v,  New  Jersey*  a  state  statute  requiring  that 
a  non-resident  automobile  owner  should,  before  operating 
his  car  in  the  State,  appoint  the  Secretary  of  State  his  agent 
upon  whom  process  might  be  served  in  any  action  arising 
out  of  the  operation  of  his  car  in  the  State,  was  held  con- 
stitutional. It  is  possible  that  Flexner  v.  Parson  will  be 
ultimately  held  to  stand  only  for  the  proposition  that  there 
was  no  jurisdiction  of  the  defendants  because  W.  Flexner 
was,  at  the  time  of  service,  no  longer  their  agent. 2 

§241.  Service  upon  a  Resident  Who  Is  Within  the  State: 
State  Decisions.  A  resident  of  one  of  the  States  of  the 
Union  who  is  a  citizen  of  the  United  States  is  also  a  citizen 
of  the  State  in  which  he  resides. 3  But  a  person  may  also, 

1  (1916)  242  U.  S.  160. 

3  For  a  very  interesting  discussion  of  this  subject  see  Scott,  "Jurisdic- 
tion over  Non-residents  Doing  Business  within  a  State,"  32  Harv. 
L.  Rev.  871. 

3  Const,  of  U.  S.  Amend.  XIV,  sec.  I. 


520       THE  AMERICAN  CONSTITUTION     §  241 

of  course,  be  domiciled  in  a  State  who  is  a  citizen  of  a  foreign 
country.  Whether  a  person  is  a  citizen  of  the  State  or  not, 
the  State  clearly  may  authorize  its  courts  to  take  juris- 
diction of  him  when  he  is  within  the  State.  By  the  common 
law  jurisdiction  in  a  proceeding  in  personam  was  acquired  by 
personal  service  upon  the  defendant  within  the  jurisdiction ; 
if  he  could  not  be  found,  pressure  was  brought  upon  him  to 
appear  by  proceedings  in  outlawry. x 

"One  thing  our  law  would  not  do,  the  obvious  thing. 
It  would  exhaust  its  terrors  in  the  endeavor  to  make  the 
defendant  appear,  but  it  would  not  give  judgment  against 
him  nntil  he  had  appeared.  .  .  .  Instead  of  saying  to 
the  defaulter,  'I  don't  care  whether  you  appear  or  no,'  it 
set  its  will  against  his  will :  'But  you  shall  appear. '" 2 

The  practice,  however,  has  been  very  generally  adopted  by 
our  state  legislatures  of  allowing  substituted  service  of 
process,  by  leaving  it  at  the  defendant's  residence,  or  of 
allowing  constructive  service  by  publication,  in  cases  where 
the  defendant  cannot  be  found  and  personally  served.  It  is 
believed  that  substituted  service  has  been  held  due  process 
and  to  give  the  court  jurisdiction,  where  the  defendant  is 
domiciled  in  and  is  actually  within  the  State,  in  all  cases 
where  the  constitutional  question  has  been  considered  in  the 
state  courts.  Such  service  is  treated  as  on  the  same  footing 
with  personal  service.3  The  verdict  of  the  state  courts  is 
also  that  constructive  service  by  publication  is  due  process 
and  gives  the  court  jurisdiction  as  against  a  defendant 
domiciled  in  and  actually  within  the  State,  on  the  ground 
that  such  a  person  owes  obedience  to  the  laws  of  the  State, 
and  the  State  has  a  right  to  prescribe  by  law  how  he  shall 

1  3  Black.  Comm.,  283. 

3  Perry,  Common-law  Pleading,  151. 

aBuneler  v.  Dawson  (1843)  5  111.  536;  Birsenthall  v.  Williams  ( 1864, 
Ky.)  I  Duv.  329;  Cassidy  v.  Leitch  (1877,  N.  Y.)  2  Abb.  N.  C.  315; 
Continental  Nat.  Bk.  v.  Thurbar  (1893)  74  Hun  632,  aff'd.  on  opinion 
below  in  143  N.  Y.  648;  Bernhardt  v.  Brown  (1896)  118  N.  C.  700; 
Bryant  v.  Shute's  Ex'r.  (1912)  147  Ky.  268,  and  cases  cited  at  p.  275  of 
the  opinion. 


§  242  JUDICIAL  PROCEEDINGS  521 

be  brought  into  its  courts,  as  long  as  the  methods  used  are 
reasonably  probable  to  apprise  him  of  the  proceedings,1 
although  it  is  very  reasonably  insisted  in  one  case  that  such 
service  is  not  due  process  except  when  it  appears  that  de- 
fendant could  not  be  found  within  the  jurisdiction  and 
personally  served.2 

§242.  Service  upon  Resident  Who  Is  Within  the  State: 
United  States  Supreme  Court.  It  is  not  easy  to  determine 
the  position  of  the  Supreme  Court  of  the  United  States  with 
regard  to  the  validity  of  substituted  service  and  of  con- 
structive service  by  publication  upon  persons  domiciled  in 
and  actually  within  the  State,  in  actions  in  personam. 3  In 
Webster  v.  Reed4  commissioners  appointed  to  partition 
certain  Indian  lands  sued  the  owners  and  had  process  served 
by  publication  according  to  the  laws  of  the  territory.  The 
Supreme  Court  held  the  judgment  void,  declaring  that  the 

"suits  were  not  a  proceeding  in  rem  against  the  land  but 
were  in  personam  against  the  owners  of  it.  Whether  they 
all  resided  within  the  territory  or  not  does  not  appear,  nor 
is  it  a  matter  of  any  importance.  No  person  is  required 
to  answer  in  a  suit  on  whom  process  has  not  been  served, 

IHolt  v.  Alloway  (1827,  Ind.)  2  Blackf.  108;  Welch  v.  Sykes  (1846) 
8  111.  197;  Matter  of  Empire  Bk.  (1858)  18  N.  Y.  199;  Hanyman  & 
Schryver  v.  Roberts  (1879)  52  Md.  64;  Betencourt  v.  Eberlin  (1882)  71 
Ala.  461  (action  commenced  by  attachment  treated  as  an  action  in 
personam)  \  Bard  well  v.  Collins  (1890)  44  Minn.  97  (foreclosure  action 
treated  as  action  in  personam).  In  Bickerdike  v.  Allen  (1895)  157  111.  95, 
the  court  held  that  in  an  action  in  personam  service  by  publication  is  not 
sufficient,  but  that  if  process  is  also  mailed  to  defendant's  residence  this 
is  prima  facie  evidence  that  he  received  it,  and  therefore  such  service  is 
pnma  facie  valid. 

2  Bard  well  v.  Collin  (1890)  44  Minn.  97. 

*  "That  a  man  is  entitled  to  some  notice  before  he  can  be  deprived 
of  his  liberty  or  property,  is  an  axiom  of  the  law  to  which  no  citations 
of  authority  would  give  additional  weight;  but  upon  the  question  of  the 
length  of  such  notice  there  is  a  singular  dearth  of  judicial  decision.    It 
is  manifest  that  the  requirement  of  notice  would  be  of  no  value  what- 
ever, unless  such  notice  were  reasonable  and  adequate  for  the  purpose." 
Roller  v.  Holly  (1900)  176  U.  S.  398,  409. 

*  (1850)  ii  Howard  437. 


522        THE  AMERICAN  CONSTITUTION     §  242 

or  whose  property  has  not  been  attached.  In  this  case 
there  was  no  personal  notice,  nor  an  attachment  or  other 
proceeding  against  the  land  until  after  the  judgments. 
The  judgments,  therefore,  are  mere  nullities  and  did  not 
authorize  the  executions  on  which  the  land  was  sold." 

This  seems  a  pretty  explicit  decision  against  service  by 
publication  in  an  action  strictly  personal,  whether  the 
defendant  is  a  resident  within  the  State  or  not.  In  Knowles 
v.  Gaslight  &  Coke  Company1  the  court  said  merely  by  way 
of  dictum : 

' '  We  do  not  mean  to  say  that  personal  service  is  in  all 
cases  necessary  to  enable  a  citizen  to  acquire  jurisdiction 
of  the  person.  When  the  defendant  resides  in  the  State 
in  which  the  proceedings  are  had,  service  at  his  residence 
and  perhaps  other  modes  of  constructive  service  may  be 
authorized  by  the  law  of  the  State." 

In  Earle  v.  McVeigh2  the  court  had  before  it  a  case  where 
service  was  attempted  by  posting  on  the  door  of  defend- 
ant's former  residence,  he  having  been  seven  months  out  of 
the  State.  The  court  held  that  the  house  in  question  was 
not  defendant's  ''usual  place  of  abode"  as  required  by  the 
state  statute,  and  that  the  service  was,  therefore,  invalid. 
But  the  court  said,  "Doubtless  constructive  notice  may  be 
sufficient  in  certain  cases,"  and  apparently  approved  of 
service  at  the  actual  place  of  residence  of  one  domiciled  in 
the  State.  The  next  case  is  that  of  Pennoyer  v.  Neff,3  in 
which  the  action  was  against  a  nonresident  in  which  service 
by  publication  was  held  insufficient.  The  court's  discussion 
is  directed  to  the  question  before  it,  but  it  quotes  with 
approval  the  statement  quoted  above  from  Webster  v.  Reid 
and  declares  in  general  language  that  in  an  action  in  per- 
sonam  the  defendant  "must  be  brought  within  its  juris- 
diction by  service  of  process  within  the  State,  or  his  volun- 
tary appearance. ' ' 4  The  next  year  the  Supreme  Court  had 

1  (1873)  19  Wallace  58,  61.  *  (1875)  91  U.  S.  503. 

3  (1877)  95  U.S.  714-  </«</.,  733- 


§  242  JUDICIAL  PROCEEDINGS  523 

before  it  a  case  where  the  action  was  one  in  personam,  and 
in  which  process  was  served  by  leaving  it  at  defendant's 
residence  with  his  wife.  A  state  statute  authorized  such 
service  if  defendant  could  not  be  found.  There  was  no 
averment  in  the  sheriff's  return  that  he  could  not  find 
defendant.  For  this  reason  the  judgment  was  held  void. 
The  court  said,  "Substituted  service  in  actions  purely  in 
personam  was  a  departure  from  the  rule  of  the  common 
law,  and  the  authority  for  it,  if  it  could  be  allowed 
at  all,  must  have  been  strictly  followed."1  In  Harkness 
v.  Hyde, 2  it  appeared  that  in  an  action  in  personam  process 
out  of  a  court  of  Idaho  Territory  was  served  personally 
upon  the  defendant  at  his  residence  on  an  Indian  reservation. 
The  reservation  was,  by  treaty  with  the  Indians  and  by 
legislation,  put  outside  of  the  jurisdiction  of  the  territory  of 
Idaho.  It  was  held  that  the  service  was  invalid  and  the 
resulting  judgment  therefore  void.  The  court  said3: 

"There  can  be  no  jurisdiction  in  a  court  of  a  territory  to 
render  a  personal  judgment  against  anyone  upon  service 
made  outside  its  limits.  Personal  service  within  its 
limits,  or  the  voluntary  appearance  of  the  defendant  is 
essential  in  such  cases.  It  is  only  where  property  of  a 
nonresident  or  of  an  absent  defendant  is  brought  under  its 
control,  or  where  his  assent  to  a  different  mode  of  service 
is  given  in  advance  that  it  has  jurisdiction  to  inquire  into 
his  personal  liabilities  or  obligations  without  personal 
service  of  process  upon  him,  or  his  voluntary  appearance 
to  the  action.  Our  views  on  this  subject  are  expressed  at 
length  in  the  late  case  of  Pennoyer  v.  Neff  (95  U.  S.  714) 
and  it  is  unnecessary  to  repeat  them  here." 

The  fair  deduction  from  these  expressions  of  opinion  by 
the  Supreme  Court  would  seem  to  be  that  the  court  does  not 
consider  service  by  publication  to  be  due  process  in  an  action 
strictly  in  personam  even  though  the  defendant  be  domiciled 
in  and  be  actually  within  the  State  from  whose  court  the 

1  Settlemeer  v.  Sullivan  (1878)  97  U.  S.  444,  447. 
3  (1878)  98  U.  S.  476.  3  ibid.,  478. 


524       THE  AMERICAN  CONSTITUTION     §  243 

process  issues.  This  point  seems  to  be  actually  involved  in 
the  decision  in  Webster  v.  Reid.  Harkness  v.  Hyde  had  to  do 
with  a  nonresident,  but  the  statement  in  the  case  as  quoted 
above  is  very  strong  to  the  effect  that  personal  service 
within  the  State  or  voluntary  appearance  is  always  neces- 
sary. In  Knowles  v.  Gaslight  &  Coke  Company  and  in  Earle 
v.  Me  Veigh  where  a  broader  view  is  intimated  the  court  may 
have  had  actions  in  rent  in  mind.  It  is  impossible  to  say 
whether  the  court  would  be  influenced  by  the  more  liberal 
view  of  the  State  courts,  if  the  question  were  now  brought 
before  it. x  It  is  believed,  however,  that  service  by  publi- 
cation may  without  unreasonable  hardship  to  plaintiffs  be 
restricted  to  actions  in  rent,  which  include  actions  com- 
menced by  attachment.  Substituted  service,  where  process 
is  left  at  the  residence  of  the  defendant,  stands  on  a  different 
footing.  It  is  treated  by  the  state  courts,  not  as  distinct 
from,  but  as  a  kind  of  personal  service.  It  is  believed  that 
the  Supreme  Court  would  probably  take  the  same  position, 
in  view  of  the  expressions  by  that  court  quoted  above,  and 
particularly  in  view  of  the  suggestion  to  be  dealt  with 
shortly,  which  was  thrown  out  in  the  recent  case  of  McDon  - 
aldv.  Mabee2  that  substituted  service  may  be  good  even  upon 
a  resident  defendant  when  out  of  the  State. 

§243.  Service  upon  Resident  Temporarily  Out  of  State. 
When  a  person  is  domiciled  in  a  State  but  is  temporarily 
outside  of  the  State  at  the  time  of  service  of  process  in  an 
action  in  personam,  two  questions  are  raised — has  the  State 
authority  over  such  person,  and  if  sp  what  means  of  service 
constitute  due  process  ?  It  has  been  held  that  a  court  of  a 
State  may  only  be  given  jurisdiction  over  those  actually 
within  the  State — that  an  attempt  to  give  jurisdiction  to  a 
court  of  a  person  who,  though  domiciled  within  the  State,  is 
actually  outside  of  the  State,  is  an  attempt  to  invade  the 
sovereignty  of  the  State  where  he  is. 3  However,  the  weight 

1  In  the  recent  case  of  McDonald  v.  Mabee  (1917)  243  U.  S.  90,  the 
court  refused  to  express  any  opinion  on  this  point. 
3  (1917)  243  U.  S.  90. 
3  De  La  Montany  v.  De  La  Montany  (1896)  112  Calif.  101,  three  judges 


§  243  JUDICIAL  PROCEEDINGS  525 

of  authority  in  state  courts  seems  to  be  on  the  other  side. 
The  theory  is  that  a  person  domiciled  in  a  State  or  country 

"owes  allegiance  to  the  country  and  submission  to  its 
laws.  .  .  .  By  reason  of  the  relation  between  the  State 
and  its  citizen,  which  affords  protection  to  him  and  his 
property  and  imposes  upon  him  duties  as  such,  he  may  be 
charged  by  judgment  in  personam  binding  on  him  every- 
where as  the  result  of  legal  proceedings  instituted  and 
carried  on  in  conformity  to  the  statute  of  the  State  pre- 
scribing a  method  of  service  which  is  not  personal  and 
which  may  not  become  actual  notice  to  him.  And  this 
may  be  accomplished  in  his  lawful  absence  from  the  State. 
It,  therefore,  becomes  important  to  inquire  whether  the 
State  of  Wisconsin  was  the  domicile  of  the  defendant  at 
the  time  the  constructive  service  was  made  there,  because 
it  is  upon  domicile  that  his  civil  status  depends."1 

Three  methods  of  service  upon  an  absent  resident  have  been 
attempted,  namely,  personal  service  outside  of  the  State, 
service  at  the  defendant's  residence,  and  service  by  publi- 

dissenting.  Similar  declarations  are  found  in  Amsbaugh  v.  Exchange 
Bk.  (1885)  33  Kan.  100,  though  there  it  seems  that  the  service  was  not 
at  defendant's  "usual  place  of  residence"  as  required  by  the  statute, 
and  in  Smith  v.  Grady  (1887)  68  Wis.  215,  though  that  case  involved  an 
action  brought  in  Ontario  against  one  who  though  a  British  subject  was 
not  a  resident  of  Ontario,  and  was  served  personally  outside  of  Ontario. 
It  is  not  clear  whether  Moss  v.  Fitch  (1908)  212  Mo.  484  and  Roher  v. 
Roher  (1911)  150  la.  511,  were  meant  to  support  the  same  proposition, 
or  were  meant  only  to  determine  that  the  methods  of  service  there 
adopted  were  invalid. 

1  Huntley  v.  Baker  (1884,  N.  Y.)  33  Hun  578,  580,  cited  with  approval 
in  de  Mali  v.  de  Mali  (1890)  120  N.  Y.  485, 495,  and  in  Teel  v.  Yost  (1891) 
128  N.  Y.  387,  396.  (This  is  not  in  conflict  with  Grubel  v.  Nassauer 
(1913)  210  N.  Y.  149,  where  the  court  refused  to  enforce  a  judgment 
obtained  in  Germany  against  a  German  citizen,  who,  however,  was 
domiciled  in  New  York,  where  the  action  was  in  personam  and  the  process 
was  served  by  publication.)  In  accord,  Sturgis  v.  Fay  (1861)  16  Ind. 
429;  Henderson  v.  Stamford  (1870)  105  Mass.  504;  Fernandez  v.  Casey  & 
Swasey  (1890)  77  Tex.  452;  Ouseley  v.  Lehigh  Val.  T.  &  S.  D.  Co.  (1897) 
84  Fed.  602.  Freeman  on  Judgments  (4th  ed.)f  sec.  570. 


526       THE  AMERICAN  CONSTITUTION     §  243 

cation.  If  the  State  has  authority  to  give  the  court  juris- 
diction of  the  person  of  a  resident  temporarily  out  of  the 
State,  service  of  process  at  his  residence  would  seem  to  con- 
stitute due  process.1  This  would  seem  to  follow  from  the 
general  view  that  such  service  is  valid  against  a  resident  who 
is  within  the  State,  and  because  it  is  a  way  reasonably  likely 
to  give  him  notice  of  the  proceedings.  The  Supreme  Court, 
though  being  careful  not  to  express  a  definite  opinion  on  the 
point,  has  intimated  that  such  service  may  be  valid  under 
the  circumstances  stated.2  Personal  service  on  a  resident 
while  outside  of  the  State  has  been  held  bad  by  the  Supreme 
Court  of  the  United  States,3  and  by  the  state  courts.4 
Although  this  is  clearly  the  best  method  of  giving  actual 
notice  to  an  absent  resident  of  the  proceedings  pending 
against  him,  it  is  held  to  constitute  an  attempt  to  give 
extraterritorial  effect  to  the  mandate  of  the  state  court. 
Service  by  publication  has  in  one  case  been  held  invalid  as 
against  an  absent  resident.5  In  another  case  it  has  been 
held  valid.6  In  a  third  jurisdiction  it  has  been  held  that 
a  judgment  obtained  upon  such  a  service  is  at  most  voidable 
by  the  defendant,  and  cannot  be  treated  as  void  by  the 
plaintiff. 7  If  the  Supreme  Court  is,  as  seems  to  be  the  case, 
opposed  to  service  by  publication  as  against  a  resident  de- 
fendant who  is  within  the  State,  a  fortiori  would  it  be  against 
such  service  when  the  defendant  is  absent  from  the  State. 

1  Sturgis  v.  Fay  (1861)  16  Ind.  429;  Huntley  v.  Baker  (1884,  N.  Y.) 
33  Hun  578.  This  seems  to  be  the  effect  of  Botna  Valley  St.  Bk.  v. 
Silver  City  Bk.  (1893)  87  la.  479.  Two  judges  in  Roher  v.  Roher  (1911) 
150  la.  511,  expressly  take  this  view;  three  do  not  express  themselves 
upon  this  point. 

3  McDonald  v.  Mabee  (1917)  243  U.  S.  90.  3  ibid. 

^  Moss  v.  Fitch  (1908)  212  Mo.  484,  overruling  Hanull  v.  Talbott 
(1897)  72  Mo.  App.  22,  (1899)  81  Mo.  App.  210;  Roher  v.  Roher  (1911) 
150  la.  511. 

sDe  La  Montany  v.  De  La  Montany  (1896)  112  Calif.  101;  three 
judges  dissenting.  And  see  Bernhardt  v.  Brown  (1896)  118  N.  C. 
700. 

6  Fernandez  v.  Casey  &  Swasey  (1890)  77  Tex.  452. 

7  Henderson  v.  Stamford  (1870)   105  Mass.  504;  Stockton  v.  Mc- 
Cracken  (1871)  109  Mass.  84. 


§§  244,  245  JUDICIAL  PROCEEDINGS  527 

This  also  is  the  fair  deduction  from  McDonald  v.  Mabee.1 
The  English  courts  have  held  that  a  judgment  against  an 
absent  resident  is  valid  though  based  upon  constructive 
service  if  such  constructive  service  is  authorized  by  law. 2 

§244.  Service  upon  Domestic  Corporations.  If  a  charter 
is  granted  by  a  State  to  a  domestic  corporation  upon 
condition  that  service  may  be  made  upon  it  through  some 
public  officer  or  by  publication  such  service  being  consented 
to  would  be  good.  Aside  from  any  such  consent  it  would 
seem  that  the  due  process  clause  would  require  the  same  sort 
of  service  upon  a  domestic  corporation  as  upon  a  resident 
natural  person.  It  has  been  held  that  constructive  service 
upon  a  domestic  corporation,  which  does  not  have  an  office 
in  the  State,  is  due  process  when  reasonable  in  character. 3 

§245.  Service  Required  in  Actions  in  Rem.  A  State  has, 
clearly,  authority  over  property  which  is  within  its  terri- 
torial limits,  whether  that  property  be  owned  by  a  resident 
or  a  nonresident.  It  may,  therefore,  authorize'  its  courts 
to  take  jurisdiction  of  controversies  with  regard  to  rights  in, 
or  claims  against  such  property,  though  personal  juris- 
diction of  the  defendant  is  not  obtained.  Such  proceedings 
are  denominated  actions  in  rent  to  distinguish  them  from  the 
purely  personal  actions,  or  actions  in  personam  which  we 
have  been  discussing. 4  Although  it  is  said  that  "the  theory 

1  (1917)  243  U.  S.  90. 

2  Douglas  v.  Forrest  (1828)  4  Bing.  686  (public  proclamation  in  court, 
in  the  market  place  and  on  the  seashore  according  to  Scottish  law); 
Bocquet  v.  McCarthey  (1831)  2  B.  &  Ad.  951  (process  served  upon  a 
public  officer  to  be  forwarded  to  the  defendant  in  accordance  with  the 
law  of  the  colony);  Maubourquet  v.  Wyse  (1867)  Ir.  Rep.  C.  L.  471 
(similar  decision  as  to  French  judgment). 

3  Town  of  Hinckley  v.  Kattle  River  R.  Co.    (1897)  70  Minn.  105 
(service  of  process  upon  the  Secretary  of  State  with  direction  to  mail  a 
copy  to  the  office  or  to  an  officer  of  the  corporation) ;  Ward  Lumber  Co. 
v.  Henerson-White  M'f'g.  Co.  (1907)  107  Va.  626  (service  by  publica- 
tion). 

4  Some  courts  distinguish  between  actions  in  rem,  i.e.,  actions  for  the 
enforcement  of  existing  interests  in  property,  and  actions  quasi  in  rem, 
by  which  is  meant  attachment  proceedings.    See  for  example  Bernhardt 
v.  Brown  (1896)  1 18  N.  C.  700.    There  seems  no  advantage  in  this  differ- 


528       THE  AMERICAN  CONSTITUTION     §  246 

of  the  law  is  that  all  property  is  in  the  possession  of  its 
owner,  in  person  or  by  agent,  and  that  its  seizure  will,  there- 
fore, operate  to  impart  notice  to  him,"1  yet  the  owner  has  a 
right  to  appear  and  be  heard.  "To  this  end  some  noti- 
fication of  the  proceedings,  beyond  that  arising  from  the 
seizure,  prescribing  the  time  within  which  the  appearance 
must  be  made,  is  essential."2  When  personal  service 
cannot  with  due  diligence  be  made  other  means  of  notifi- 
cation, reasonably  likely  to  bring  the  proceedings  to  the 
knowledge  of  the  defendant,  may  be  employed,  such  as 
publication;  and  this,  whether  the  defendant  be  a  resident 
or  a  nonresident. 3 

§246.  Service  Required  in  Divorce  Proceedings,  Divorce 
proceedings  constitute  a  class  by  themselves.  They  are, 
however,  rather  proceedings  in  rent  than  in  personam, 
having  as  their  object  the  determination  of  status.  If  the 
plaintiff  is  domiciled  in  the  State  where  the  proceedings  are 
brought,  service  by  publication  will  be  sufficient  to  give  the 
determination  as  to  his  status  validity  in  that  State ;  and  if 

entiation  for  our  purposes;  "  it  is  true  that,  in  a  strict  sense,  a  proceeding 
in  rem  is  one  taken  directly  against  property,  and  has  for  its  object  the 
disposition  of  the  property,  without  reference  to  the  title  of  individual 
claimants;  but,  in  a  larger  and  more  general  sense,  the  terms  are  applied 
to  actions  between  parties,  where  the  direct  object  is  to  reach  and  dis- 
pose of  property  owned  by  them,  or  of  some  interest  therein.  Such  are 
cases  commenced  by  attachment  against  the  property  of  debtors,  or 
instituted  to  partition  real  estate,  foreclose  a  mortgage,  or  enforce  a  lien. 
So  far  as  they  affect  property  in  the  State,  they  are  substantially  pro- 
ceedings in  rem  in  the  broader  sense  which  we  have  mentioned."  Pen- 
noyer  v.  Neff  (1877)  95  U.  S.  714,  734.  So  proceedings  in  rem  include 
also  actions  to  quiet  title,  Jacob  v.  Roberts  (1912)  223  U.  S.  261 ;  garnish- 
ment proceedings,  Herbertt;.  Bicknell  (1914)  233  U.  S.  70;  condemnation 
proceedings,  Huling  v.  Kaw  Valley  Co.  (1889)  130  U.  S.  559;  escheat, 
Hamilton  v.  Brown  (1896)  161  U.  S.  256;  and  the  probate  of  a  will, 
Freeman  on  Judgments  (4th  ed.)  sec.  608;  cf.  Cummings  v.  Reading 
School  Dist.  (1905)  198  U.  S.  458.  See  a  note  in  22  Col.  L.  Rev.  153, 
on  ''Service  by  Publication  upon  non-resident  Defendants  in  Actions 
in  R.em" 

*  Windsor  v.  McVeigh  (1876)  93  U.  S.  274,  279.  *  Ibid. 

3  Ibid.;  Pennoyer  v.  Neff  (1877)  95  U.  S.  714,  734;  Jacob  v.  Roberts 
(1912)  223  U.  S.  261 ;  Herbert  v.  Bicknell  (1914)  233  U.  S.  70. 


§  247  JUDICIAL  PROCEEDINGS  529 

the  plaintiff  is  by  such  proceedings  declared  to  be  single 
the  defendant  can  no  longer  be  the  plaintiff's  spouse  in  that 
State.  But  a  judgment  under  these  circunstances  against 
a  nonresident  defendant  will  not  determine  his  status  in  the 
State  of  his  residence,  since  that  status  is  not  a  res  within 
the  jurisdiction  of  the  court  rendering  the  decree.  To  give 
such  a  decree  extraterritorial  effect  the  defendant  must 
have  appeared  or  been  served  within  the  State.  To  the 
last  proposition  there  is,  however,  this  apparent  exception, 
when  action  is  brought  in  the  State  of  last  matrimonial 
domicile  the  marriage  status  is  within  the  jurisdiction  of 
that  State,  and  therefore  the  marriage  status  may  be  acted 
upon,  though  the  defendant  has  been  served  only  by 
publication. r 

§247.     Due  process  in  Criminal  Trials.      In  the  criminal 
case  of  Twining  v.  New  Jersey2  the  court  said  that 

"due  process  requires  that  the  court  which  assumes  to 
determine  the  rights  of  parties  shall  have  jurisdiction 
.  .  .  and  that  there  shall  be  notice  and  opportunity  for 
hearing  given  the  parties." 

The  Fifth  and  Sixth  Amendments  of  the  Federal  Con- 
stitution expressly  provide  that  a  person  can  only  be  tried 
for  "a  capital  or  otherwise  infamous  crime"  upon  indict- 
ment by  a  grand  jury,  that  a  person  cannot  be  twice  put  in 
jeopardy  for  the  same  offense,  that  a  person  shall  not  be 
compelled  to  be  a  witness  against  himself  in  a  criminal  case, 
and  that  in  a  criminal  prosecution  the  defendant  shall  be 
entitled  to  a  jury  trial,  and  to  be  confronted  with  the  wit- 
nesses against  him.  But ,  these  amendments  constitute  \ 
restrictions  only  upon  the  federal  government.  There  are 
no  similar  express  limitations  in  the  Federal  Constitution 
upon  the  States.  They  are  limited  by  the  Federal  Con- 
stitution, with  regard  to  criminal  trials,  only  by  the  due 
process  clause.  The  Supreme  Court,  after  the  sentence 
quoted  above,  goes  on  to  say,3 

1  See  the  discussion  and  citation  of  authorities  in  sees.  203. 
a  (1908)  211  U.  S.  78,  1 10.  3  ibid. 

34 


530       THE  AMERICAN  CONSTITUTION     §  247 

"Subject  to  these  two  fundamental  conditions,  which 
seem  to  be  universally  prescribed  in  all  systems  of  law 
established  by  civilized  countries,  the  court  has  up  to  this 
time  sustained  all  state  laws,  statutory  and  judicially  de- 
»  clared,  regulating  procedure,  evidence,  and  methods  of 
trial,  and  held  them  to  be  consistent  with  due  process  of  law.'1 

The  Supreme  Court  has  held  that  a  State  may,  without 
violating  the  due  process  clause,  provide  for  the  commence- 
ment of  criminal  prosecutions  by  information  instead  of 
indictment,1  and  for  trial  by  a  jury  of  eight  instead  of 
twelve.2  " Indeed  the  requirement  of  due  process  does  not 
deprive  a  State  of  the  power  to  dispense  with  jury  trial 
altogether. " 3  So  due  process  does  not  require  that  a  person 
be  exempt  from  compulsory  self-incrimination. 4  It  has  been 
held,  overruling  previous  cases,  that  there  is  no  lack  of  due 
process  where  the  defendant  is  not  formally  arraigned,  but 
is  tried  as  if  a  formal  plea  of  not  guilty  had  been  entered, 
upon  an  information  of  which  he  had  full  knowledge,  as 
evidenced  by  motions  to  quash,  to  strike  out,  and  to  make 
more  definite  made  by  him  before  trial.5  Also  a  person 
cannot  complain  that  he  has  been  convicted  without  due 
process,  when,  though  present  throughout  the  trial,  he  is  so 
deaf  that  he  cannot  hear  any  of  the  testimony.6  Confron- 
tation with  witnesses  is  not  guarantied  by  the  Constitution 
to  persons  accused  of  crimes  in  the  state  courts,  and  it  is 
not  contrary  to  due  process  to  introduce  in  a  criminal  trial  a 
deposition  taken  before  the  examining  magistrate  in  the 
presence  of  the  defendant,  even  though  the  witness  is  still 
alive.7  An  appeal  to  a  higher  court  is  not  a  matter  of 

1  Hurtado  v.  California  (1884)  1 10  U.  S.  516. 
-    a  Maxwell  v.  Dow  (1900)  176  U.  S.  581. 

3  Jordan  v.  Massachusetts  (1912)  225  U.  S.  167,  176.  So  provision 
for  a  struck  jury  in  criminal  cases  is  constitutional.  Brown  v.  New 
Jersey  (1899)  175  U.  S.  172. 

*  Twining  v.  New  Jersey  (1908)  21 1  U.  S.  78. 

s  Garland  v.  Washington  (1914)  232  U.  S.  642. 

6  Felts  v.  Murphy  (1906)  201  U.  S.  123. 

7  West  v.  Louisiana  (1904)  194  U.  S.  258. 


§247  JUDICIAL  PROCEEDINGS  531 

constitutional  right  under  the  due  process  clause,  and  a 
State  may  allow  an  appeal  upon  such  terms  as  it  thinks 
proper. J 

Although  no  provision  in  the  first  ten  amendments  ex- 
pressly requires  that  a  defendant  must  be  present  in  court 
throughout  criminal  proceedings,  the  Supreme  Court  has 
declared  that  by  the  common  law  he  had  a  right  to  be  so 
present  in  a  trial  for  felony,  and  that  in  such  a  trial  in  a 
federal  court,  under  a  trial  practice  regulated  by  the 
common  law,  there  was  lack  of  due  process  under  the  Fifth 
Amendment  if  he  was  involuntarily  absent  at  any  stage  of 
the  proceedings. 2  But  there  is  no  lack  of  due  process  under 
the  Fifth  Amendment  if  the  defendant  who  is  not  in  custody 
voluntarily  absents  himself,  and  so  waives  his  right  to  be 
present,  at  least  if  he  is  not  on  trial  for  a  capital  offense.3 
In  Howard  v.  Kentucky4  it  was  held  that  a  person  is  not 
denied  the  due  process  guarantied  by  the  Fourteenth 
Amendment  by  the  law  of  a  State  which  holds  it  not  to  be 
reversible  error  for  a  defendant  in  a  murder  trial  to  be 
occasionally  absent  during  the  trial,  when  no  injury  results 
to  his  substantial  rights.  Later  in  Frank  v.  Mangum5  the 
Supreme  Court  held  that  a  defendant  may  waive  his  right 
to  be  present  when  the  jury  renders  its  verdict,  and  that 
such  waiver  may  occur  after  as  well  as  before  the  event,  that 
it  is  competent  for  a  State  to  adopt  the  inference  that  there 
has  been  such  waiver  when  defendant  moves  for  a  new  trial 
on  other  grounds;  that  since  a  State  may  do  away  with 
trial  by  jury  it  may  make  such  provisions  as  have  just  been 
stated  for  waiver  of  the  right  to  be  present  when  the  jury 
renders  its  verdict  without  being  chargeable  with  a  denial  of 
due  process.  The  court  points  out6  that  there  is  a 
"distinction  between  what  the  common  law  requires  with 

1  McKane  v.  Durston  (1894)  153  U.  S.  684. 

3  Lewis  v.  United  States  (1892)  146  U.  S.  370.  There  is  of  course  lack  of 
due  process  if  he  is  absent  when  a  statute  expressly  requires  his  presence. 
Hopt  v.  Utah  (1884)  1 10  U.  S.  574. 

3  Diaz  v.  United  States  (1912)  223  U.  S.  442. 

« (1906)  200  U.  S.  164.          s  (1915)  237  U.  S.  309.          6  Ibid.,  341. 


532        THE  AMERICAN  CONSTITUTION     §  247 

respect  to  trial  by  jury  in  criminal  cases,  and  what  the 
States  may  enact  without  contravening  the  'due  process' 
clause  of  the  Fourteenth  Amendment."  In  view  of  the  fur- 
ther statement1  that  "repeated  decisions  of  this  court  have 
put  it  beyond  the  range  of  further  debate  that  the  'due 
process '  clause  of  the  Fourteenth  Amendment  has  not  the 
effect  of  imposing  upon  the  States  any  particular  form 
or  mode  of  procedure,  so  long  as  the  essential  rights  of 
notice  and  a  hearing,  or  opportunity  to  be  heard,  before 
a  competent  tribunal  are  not  interfered  with,"  it  would 
seem  that  voluntary  waiver  of  the  right  to  be  present, 
at  any  stage  of  the  proceedings  might  constitutionally 
be  provided  for. 

1  Frank  v.  Mangum  (1915)  237  U.  S.  309,  340. 


CHAPTER  XXX 

DUE  PROCESS  IN  TAXATION 

§248.  Taxation  Properly  Levied  for  a  Proper  Purpose  Con- 
stitutes Due  Process.  Since  taxation  is  absolutely  necessary 
for  the  existence  of  a  government,  it  is  clear  without  argu- 
ment or  citation  of  authority  that  a  person  whose  property 
is  taken  by  taxation  is  deprived  of  property  with  due  process 
if  the  tax  is  levied  for  a  proper  purpose,  if  the  State  has 
jurisdiction  of  the  subject-matter  of  the  tax,  and  if  the 
procedure  adopted  is  adequate.  On  the  other  hand,  since 
a  State  exists  only  for  the  protection  of  its  citizens  and  to 
provide  for  their  general  welfare,  it  may  not  levy  taxes 
except  for  a  public  purpose.  Again,  since  a  State  has  no 
authority  outside  of  its  borders  it  may  not  levy  taxes  on 
property  outside  of  its  territorial  jurisdiction.  Further- 
more its  procedure  must  be  such  as  to  conform  to  principles 
of  substantial  justice  with  regard  to  notice  and  hearing. 

§249.  What  Are  and  What  Are  Not  Proper  Purposes  for 
Taxation.  The  ordinary  expenses  of  government,  the  cost 
of  public  buildings  and  highways,  the  administration  of 
justice,  the  provision  for  public  education,  and  the  care  of 
the  insane,  the  physically  handicapped  and  the  indigent  are 
obviously  public  purposes.1  So  are  the  building  of  rail- 
roads, 2  and  of  irrigation  plants. 3  The  construction  of  water, 
gas,  and  electric  plants  and  of  telegraph  and  telephone  lines 
are  also  public  purposes  though  the  question  has  generally 

'37  Cyc.  721. 

3  Folsom  ».  Township  Ninety-six  (1895)  159  U.  S.  611,  628;  14  L.  R. 
A.  479,  note. 

a  Davidson  v.  New  Orleans  (1877)  96  U.  S.  97;  Hogan  v.  Reclamation 
District  (1884)  in  U.  S.  701. 

533 


534      THE  AMERICAN  CONSTITUTION      §249 

arisen  with  regard  to  eminent  domain.1  Furthermore,  aid 
may  be  given  to  them  by  subscription  to  stocks  and  bonds 
instead  of  by  the  donation  of  funds.2  The  discharge  of  a 
moral  obligation  resting  upon  the  State,  though  there  is  no 
legal  obligation,  is  a  public  purpose  justifying  taxation.3 
On  the  other  hand  it  is  clear  that  money  may  not  be  raised 
by  taxation  to  aid  or  to  establish  a  business  of  a  purely  pri- 
vate character,  though  there  might  be  some  incidental 
benefit  to  the  community  as  the  result  of  the  establishment 
of  the  business.4  But  where  the  dividing  line  is  to  be 
drawn  courts  have  not  found  it  easy  to  determine.  Some 
courts,  particularly  in  the  earlier  cases,  have  stressed  the 
argument  of  custom,  and  the  question  whether  the  business 
involved  was  one  upon  which  a  person  could  only  enter 
with  the  aid  of  governmental  powers  such  as  that  of  eminent 
domain.5  The  modern  tendency,  however,  has  been  to 
make  the  determination  turn  rather  upon  whether  the 
undertaking,  which  it  is  desired  to  carry  on  or  aid  by 
taxation,  will  supply  a  public  need  which  may  not  be  ade- 
quately supplied  by  private  enterprise  alone.  So  it  has 
been  held  that  taxation  to  provide  for  a  municipal  coal  yard 
is  constitutional,6  and  also  to  supply  a  municipal  ice  plant.7 
Whether  it  is  constitutional  for  the  State  by  taxation  to 
supply  housing  facilities,  seed  grain,  or  other  commodities 

1  See  Chap.  31.  "The  use  for  which  private  property  is  to  be  taken 
must  be  a  public  one  whether  the  taking  be  by  the  exercise  of  the  right 
of  eminent  domain,  or  by  that  of  taxation."  Fallbrook  Irrigation  Dist. 
v.  Bradley  (1896)  164  U.  S.  112,  161. 

a  Folsom  v.  Township  Ninety-six  (1895)  159  U.  S.  611.  State  aid  to 
privately  owned  enterprises  though  "public"  in  character  is  now  quite 
generally  forbidden  by  state  constitutions.  "Neither  the  credit  nor  the 
money  of  the  State  shall  be  given  or  loaned  to  or  in  aid  of  any  association, 
corporation,  or  private  undertaking."  N.  Y.  Const.,  Art.  VIII,  sec.  9. 

3  United  States  v.  Realty  Co.  (1896)  163  U.  S.  427,  438. 

4  Loan  Association  v.  Topeka  (1874)  20  Wallace  655. 
s  Ibid.;  Opinion  of  Justices  (1912)  211  Mass.  624. 

6Loughlin  v.  City  of  Portland  (1914)  II]t  Me.  486;  Jones  i>.  City  of 
Portland  (1917)  245  U.  S.  217.  Contra,  Opinion  of  Justices  (1903)  182 
Mass.  605;  Baker  v.  City  of  Grand  Rapids  (1906)  142  Mich.  687. 

i  Holton  v.  City  of  Camilla  (1910)  134  Ga.  560. 


§  249        DUE  PROCESS  IN  TAXATION  535 

usually  supplied  by  private  enterprise,  when,  as  the  result  of 
some  calamity  or  unusual  circumstances,  a  large  number 
of  citizens  are  not  able  to  supply  themselves,  is  a  question  to 
which  diverse  answers  have  been  given  by  state  courts.1 
It  would  seem  that  the  controlling  factors  in  the  decision 
should  be  the  extent  of  the  need,  and  the  question  whether 
the  need  can  be  adequately  supplied  through  private  enter- 
prises. In  the  recent  case  of  Green  v.  Frazier2  the  Supreme 
Court  had  before  it  legislation  of  North  Dakota  for  the 
organization  of  a  state  bank,  for  the  organization  of  a  state 
mill  and  elevator  association,  for  the  manufacture  and 
marketing  of  farm  products  and  farm  machinery,  and  the 
maintenance  of  elevators  and  warehouses,  and  for  the  estab- 
lishing of  a  Home  Building  Association  to  provide  homes  for 
residents  of  the  State.  All  these  projects  were  to  be 
financed  by  taxation,  and  to  be  carried  on  by  the  State. 
The  Supreme  Court  unanimously  held  that  the  legislation 
was  not  in  conflict  with  the  due  process  clause  of  the  Four- 
teenth Amendment.  It  was  thought  by  the  state  legislature 
and  by  the  state  court  in  a  State  essentially  agricultural, 
and  where  a  large  part  of  the  population  were  tenants, 
that  the  act  to  provide  for  the  Mill  and  Elevator  Associa- 
tion and  the  Home  Building  Association  would  promote 
the  general  welfare,  and  that  a  state  bank  was  necessary 
to  these  other  projects.  The  Supreme  Court  felt  that 
it  could  not  say  that  these  conclusions  were  not  correct, 
and  that  if  they  were  correct  the  purposes  could  fairly  be 
denominated  "  public."  The  court  relied  upon  Jones  v.  City 
of  Portland,3  in  which  the  establishment  of  a  public  fuel 
yard  was  held  a  public  purpose,  distinguishing  Citizens 
Savings  &  Loan  Association  v.  Topeka*  on  the  ground  that 
1  Lowell  v.  Boston  (1873)  in  Mass.  454  (taxation  to  help  rebuild 
after  great  fire  unconstitutional);  Fillan  v.  Gillan  (1867)  55  Pa.  430 
(taxation  to  compensate  for  property  burned  by  confederate  soldiers 
constitutional);  State  v.  Osawkee  Township  (1875)  H  Kan.  418  (tax- 
ation to  supply  seed  grain  to  farmers  in  financial  distress  unconstitu- 
tional); State  v.  Nelson  (1890)  I  N.  D.  88  (same,  constitutional). 

3  (1920)  253  U.  S.  233.  3  (1917)  243  U.  S.  217. 

4  (1874)  20  Wallace  655. 


536  THE  AMERICAN  CONSTITUTION  §§250,251 

"this  is  not  a  case  of  undertaking  to  aid  private  institutions 
by  public  taxation, "  saying  that 

"in  many  instances  States  and  municipalities  have  in 
late  years  seen  fit  to  enter  upon  projects  to  promote  the 
public  welfare  which  in  the  past  have  been  considered 
entirely  within  the  domain  of  private  enterprise." 

It  would  seem  that  the  Fourteenth  Amendment  will  con- 
stitute no  obstacle  to  state  socialism. 

§250.  Exemption  from  Taxation.  Although  there  is 
difference  of  opinion  among  the  state  courts  as  to  whether 
an  exemption  of  a  private  business  from  taxation  falls  under 
the  same  condemnation  as  aid  granted  to  such  business 
through  taxation, x  the  Supreme  Court  of  the  United  States 
seems  to  accept  such  exemptions  as  constitutional.2 

§251.  Right  of  State  to  Tax  Land  and  Chattels.  The 
Supreme  Court  of  the  United  States  has  said  that 

"we  know  of  no  case  where  a  legislature  has  assumed 
to  impose  a  tax  upon  land  within  the  jurisdiction  of 
another  State;  much  less  where  such  action  has  been 
defended  by  any  court."3 

It  has  always  been  accepted  as  true  that  chattels  may  be 
taxed  in  the  State  where  they  are,4  but  in  the  case  just  cited 
the  court  apparently  recognized  the  power  of  the  State  of 
the  owner's  residence  to  tax  such  chattels  also,  though  they 
are  not  within  its  borders.5  This  would  be  in  accord  with 
the  maxim  mobilia  sequuntur  personam  which  has  been 

1  Weeks  v.  Milwaukee  (1860)  10  Wis.  186  (exemption  of  hotel  prop- 
erty unconstitutional);  Opinion  of  the  Court  (1879)  58  N.  H.  623  (ex- 
emption of  private  property  constitutional). 

a  Illinois  Cent.  Ry.  v.  Decatur  (1893)  147  U.  S.  190. 

3  Union  Refrigerator  Tr.  Co.  v.  Kentucky  (1905)  199  U.  S.  194,  204. 

4  Coe  v.  Erral  (1886)  116  U.  S.  517. 

s  Ibid,,  524:  "  If  the  owner  of  personal  property  within  a  State  resides 
in  another  State  which  taxes  him  for  that  property  as  part  of  his  general 
estate  attached  to  his  person,  this  action  of  the  latter  State  does  not  in 
the  least  affect  the  right  of  the  State  in  which  the  property  is  situated  to 
tax  it  also." 


§  252        DUE  PROCESS  IT  TAXATION  537 

frequently  assumed  to  apply  to  tangible  as  well  as  to 
intangible  personal  property.1  The  Supreme  Court,  how- 
ever, has  more  recently  declared  that  the  State  of  the 
owner's  domicile  cannot  tax  chattels  which  have  a  situs  in 
another  State,2  although  these  decisions  do  not  apply  "to 
tangible  personal  property,  which,  although  physically  out- 
side the  State  of  the  owner's  domicile,  had  not  acquired  an 
actual  situs  elsewhere."3  So  a  railroad  company  in  the 
State  of  its  domicile  may  be  taxed  upon  all  of  its  rolling 
stock  which  is  within  the  State  during  any  part  of  the  tax 
year,4  even  though  another  State  may  also  levy  a  tax  based 
upon  the  average  number  of  cars  within  its  border  during 
the  year.5 

§252.  Taxation  of  Franchises  and  the  "  Unit  Rule'1  as  to 
Intangible  Property.  The  franchise  of  a  corporation  may  be 
taxed  in  the  State  which  grants  it,6  and  the  value  generally 
put  upon  such  franchise  for  taxation  is  arrived  at  by  cap- 
italizing the  net  earnings  and  deducting  from  the  resulting 
figure  the  value  of  the  tangible  property  in  the  State,7  or 
by  taking  the  market  value  of  the  stocks  and  bonds  of  the 
corporation.8  A  State  may  not,  however,  tax  directly  a 
franchise  granted  by  another  State.9  But  it  may  be  that  a 

1  See  notes  in  69  L.  T.  A.  443,  36  L.  R.  A.  (N.  5.)  295  and  L.  R.  A. 
1915  £908. 

2  Delaware  L.  &  W.  R.  R.  Co.  v.  Pennsylvania  (1905)  198  U.  S.  341; 
Union  Refrigerator  Tr.  Co.  v.  Kentucky  (1905)  199  U.  S.  194.    In  the 
first  of  these  cases  it  was  held  that  a  tax  on  corporate  stock  when  directed 
against  the  corporation  is  a  tax  on  the  assets  of  the  corporation  issuing 
the  stock. 

J  Hawley  v.  Maiden  (1914)  232  U.  S.  I,  1 1.  So  where  a  Kentucky  cor- 
poration owned  ships  plying  between  New  York  and  New  Orleans  it  was 
held  that  they  could  be  taxed  in  Kentucky  having  acquired  no  other 
situs.  Southern  Pac.  Co.  v.  Kentucky  (1911)  222  U.  S.  63. 

«  New  York  ex  rel.  New  York  Cent.  &  H.  R.  R.  R.  Co.  v.  Miller  (1906) 
202  U.  S.  584. 

s  American  Refrigerator  Tr.  Co.  v.  Hall  (1899)  174  U.  S.  70. 

6  New  York  ex  rel.  Met.  St.  Ry.  Co.  v.  Tax  Com'rs.  (1905)  199  U.  S.  I. 

'People  v.  Tax  Commissioners  (1909)  196  N.  Y.  39. 

•Henderson  Bridge  Co.  v.  Kentucky  (1897)  166  U.  S.  150. 

*  Louisville  &  J.  Ferry  Co.  v.  Kentucky  (1909)  188  U.  S.  385. 


' 


538       THE  AMERICAN  CONSTITUTION     §  252 

x  corporation  is  doing  business  in  a  number  of  States,  and  that 
the  aggregate  value  of  its  property  measured  by  its  earning 
capacity  is  far  in  excess  of  the  aggregate  value  of  its  tangible 
property.  Is  this  excess  to  go  untaxed,  or  is  it  to  be  taxed 
wholly  in  the  State  of  its  creation,  or  is  it  to  be  apportioned 
among  the  States  for  taxing  purposes?  The  latter  result 
has  been  reached  by  the  Supreme  Court  under  what  is 
known  as  the  "unit  rule."  "It  is  a  cardinal  rule  which 
should  never  be  forgotten  that  whatever  property  is  worth 
for  the  purpose  of  income  and  sale  it  is  also  worth  for  pur- 
poses of  taxation."1  This  taxation  value  may  fairly  be 
arrived  at  by  adding  together  the  market  value  of  the 
company's  capital  stock  and  bonds. 2 

4  'Where  is  the  situs  of  this  intangible  property  ?  Is  it 
simply  where  its  home  office  is  ...  or  in  the  State  which 
gave  it  its  corporate  franchise;  or  is  that  intangible  prop- 
erty distributed  wherever  its  tangible  property  is  located 
and  its  work  is  done?  Clearly  as  we  think,  the  latter. 
Every  State  within  which  it  is  transacting  business  and 
where  it  has  its  property,  more  or  less,  may  rightfully  say 
that  the  $16,000,000  of  value  which  it  possesses  springs 
not  merely  from  the  original  grant  of  corporate  power  by 
the  State  which  incorporated  it,  or  from  the  mere  owner- 
ship of  the  tangible  property,  but  it  springs  from  the  fact 
that  that  tangible  property  it  has  combined  with  con- 
tracts, franchises,  and  privileges  is  a  single  unit  of  property 
and  this  State  contributes  to  that  aggregate  value  not 
merely  the  separate  value  of  such  tangible  property  as  is 
within  its  limits,  but  its  proportionate  share  of  the  value 
of  the  entire  property. ' ' 3 

The  apportionment  has  been  made  in  the  case  of  railroads 
upon  the  basis  of  the  ratio  which  the  track  mileage  within 
the  State  bears  to  the  entire  track  mileage4;  in  the  case  of 

1  Adams  Express  Co.  v.  Ohio  (1897)  166  U.  S.  185,  220. 

2  State  Railroad  Tax  Cases  (1875)  92  U.  S.  575;  Henderson  Bridge  Co. 
v.  Kentucky  (1897)  166  U.  S.  150. 

3  Adams  Express  Co.  v.  Ohio  (1897)  166  U.  S.  185,  223. 

*  Pittsburgh  etc.  Ry.  Co.  v.  Backus  (1894)  154  U.  S.  421. 


§  253        DUE  PROCESS  IN  TAXATION  539 

Pullman  or  sleeping  car  companies  upon  the  basis  of  the 
ratio  which  the  miles  of  track  over  which  the  company  runs 
within  the  State  bear  to  the  whole  track  mileage  over  which 
it  runs1 ;  in  the  case  of  telegraph  companies  upon  the  basis  of 
the  ratio  which  the  wire  mileage  within  the  State  bears  to 
the  entire  wire  mileage2;  and  in  the  case  of  express  compan- 
ies upon  the  basis  of  the  ratio  which  the  railroad  mileage 
covered  within  the  State  bears  to  the  entire  railroad  mileage 
used  by  it. 3  But  if  it  appears  that  part  of  the  capital  of  the 
corporation,  which  is  not  located  in  the  taxing  State,  is  not 
used  in  connection  with  the  business  which  is  in  part  carried 
on  in  that  State,  the  value  of  such  property  must  be  ex- 
cluded in  arriving  at  the  unit  value  of  the  business.4  It 
may  be,  also,  that  in  special  cases  the  apportionment  of  the 
unit  value  of  a  business  according  to  the  ratios  above  stated 
would  not  be  reasonable,  and  would  have  to  be  modified,  as 
where  a  railroad  has  in  one  State  a  very  short  track  mileage 
but  a  very  valuable  terminal. 5 

§253.  State  Taxes  Interfering  with  the  National  Govern- 
ment. Although  not  expressly  limited  by  constitutional 
provision,  a  State  may  not  levy  taxes  which  interfere  with 
the  federal  government  in  the  performance  of  its  functions. 
Therefore,  States  may  not  tax  federal  property, 6  the  salaries 
of  federal  officers, 7  the  property  of  a  purely  federal  instru- 
mentality such  as  a  national  bank,  except  so  far  as  expressly 

1  Pullman  Palace  Car  Co.  v.  Pennsylvania  (1891)  141  U.  S.  18. 
3  Western  Union  Tel.  Co.  v.  Taggart  (1896)  163  U.  S.  i. 

3  Adams  Express  Co.  v.  Ohio  (1897)  165  U.  S.  194,  upon  rehearing 
(1897)  166  U.  S.  185;  Fargo  v.  Hart  (1904)  193  U.  8.490.     Cf.  Under- 
wood Typewriter  Co.  v.  Chaimberlain  (1920)  254  U.  S.   113,  where  in 
the  case  of  a  manufacturing  concern  the  apportionment  was  made 
upon  the  basis  of  a  comparison  of  the  tangible  property  within  the 
State  and  without  the  State. 

4  Fargo  v.  Hart  (1904)  193  U.  S.  490. 

s  Cleveland  &c.  Ry.  Co.  v.  Backus  (1894)  J54  U.  S.  439,  443.  Cf. 
Wallace  v.  Hines  (1920)  253  U.  S.  66. 

6  Van  Brocklin  v.  Tennessee  (1886)  117  U.  S.  151 ;  Wisconsin  C.  Ry.  v. 
Price  Co.  (1890)  133  U.  S.  496. 

?  Dobbins  v.  Commissioners  (1842)  16  Peters  435. 


540       THE  AMERICAN  CONSTITUTION     §  254 

permitted  by  Congress1;  may  not  directly  tax  the  right  to 
exercise  federal  franchises, a  and  may  not  tax  federal  securi- 
ties. 3  But  an  inheritance  tax  may  be  levied  by  a  State  upon 
legacies  consisting  of  United  States  bonds,  because  this  is 
not  a  tax  on  the  bonds  but  upon  the  privilege  of  transmission 
or  of  inheritance. 4  Also  an  inheritance  tax  may  be  levied 
by  a  State  upon  property  left  by  will  to  the  United  States. 
The  tax  in  such  a  case  is  looked  upon  as  a  tax  upon  the  privilege 
of  transmission,  and  as  being  deducted  before  the  legacy 
reaches  the  hands  of  the  United  States.5  While  a  State 
may  not  levy  a  tax  upon  the  privilege  of  engaging  in  inter- 
state commerce  within  its  borders  or  upon  the  receipts  from 
interstate  commerce  as  such,  it  may  tax  the  property  within 
the  State  of  persons  or  corporations  engaged  in  interstate 
commerce.6  It  is  on  this  principle  that  the  "unit  rule"  of 
taxation  on  interstate  business,  discussed  just  above,  is 
justified  as  not  being  an  improper  interference  with  inter- 
state commerce. 

§254.  Excises  on  Foreign  Corporations.  As  we  have 
seen,  a  State  may  not  exclude  a  foreign  corporation  desiring 
to  enter  to  engage  in  interstate  commerce,  but  it  may  ex- 
clude such  a  corporation  desiring  to  do  intrastate  business, 
and,  if  it  desires  to  do  intrastate  business  only,  the  State 
may  apparently  impose  upon  it  such  arbitrary  excise  tax 
upon  the  privilege  of  doing  so  as  it  may  think  fit. 7  How- 
ever, in  case  the  foreign  corporation  is  doing  both  interstate 
and  intrastate  business  within  the  taxing  State  an  excise 

1  Owensboro  National  Bank  v.  Owensboro  (1899)  173  U.  S.  664;  Bank 
of  California  v.  Richardson  (1919)  248  U.  S.  476. 

3  California  ».  Central  Pac.  Ry.  Co.  (1888)  127  U.  S.  I. 

aWeston  v.  Charleston  (1829)  2  Peters  449.  But  a  State  may  tax 
securities  issued  by  another  State  and  held  by  a  resident  of  the  taxing 
State.  Bonaparte  v.  Tax  Court  (1881)  104  U.  S.  592. 

*  Plummer  v.  Coler  (1900)  178  U.  S.  115. 

« United  States  v.  Perkins  (1896)  163  U.  S.  625;  United  States  v. 
Fitch  (i  896)  1 63  U.  8.631. 

6  Adams  Express  Co.  v.  Ohio  (1897)  165  U.  S.  194.  See  further  as  to 
state  taxation  and  interstate  commerce,  sec.  95. 

i  Sec.  206. 


§  255        DUE  PROCESS  IN  TAXATION  541 

may  not  be  laid  ostensibly  upon  the  privilege  of  doing  the 
intrastate  business  which  in  fact  lays  a  substantial  burden 
upon  the  interstate  business.1  So  an  excise  in  form  upon 
the  intrastate  business  but  measured  by  the  entire  capital 
stock  of  the  corporation  is  invalid2;  unless  this  is  coupled 
with  a  declaration  of  fixed  sum  beyond  which  the  tax  is 
not  to  go,  which  is  so  low  in  view  of  the  intrastate  business 
done  as  not  to  be  a  substantial  burden  on  the  interstate 
business. 3  An  excise  upon  the  intrastate  business  measured 
by  that  part  of  its  total  capital  stock  which  represents 
the  value  of  the  property  located  within  the  State  is  valid, 4 
and  so  a  fortiori  is  such  a  tax  based  upon  the  gross  receipts 
from  the  intrastate  business. s 

§255.  State  Taxation  of  Choses  in  Action.  All  forms 
of  choses  in  action  are  taxable  by  the  State  of  the  owner's 
domicile  according  to  the  maxim  mobilia  sequuntur  per- 
sonant. 6  In  an  early  case  it  was  held  that  a  State  could  not 

1  See  generally  Thomas  R.  Powell,  "Indirect  Encroachment  on  Fed- 
eral Authority  by  the  Taxing  Power  of  the  States, "  31  Harv.  L.  Rev., 
321,  572,  721,  932.  Cf.  Postal  Teleg.  Cable  Co.  v.  Tremont  (1921) 
255  U.  S.  114.  See  further  sec.  95. 

a  Western  Union  Tel.  Co.  v.  Kansas  (1910)  216  U.  S.  i.  The  majority 
of  the  court  in  this  case  further  held  that,  aside  from  the  interference 
with  interstate  commerce,  the  requirement  that  the  corporation  pay  an 
arbitrary  sum  or  give  up  its  established  interstate  business  and  sacrifice 
its  property  in  the  State  devoted  to  that  purpose  was  a  taking  of  its 
property  arbitrarily  and  so  without  due  process.  To  this  the  minority 
answered,  that  since  the  foreign  corporation  had  no  right  in  the  State, 
and  since  it  was,  therefore,  merely  in  the  State  as  a  licensee  that  license 
could  be  withdrawn  at  will,  or  continued  upon  such  conditions  as  the 
State  should  declare,  and  that  the  corporation  must  have  entered  upon 
this  understanding.  In  such  a  case,  aside  from  the  effect  upon  inter- 
state commerce,  the  action  of  the  State  would  seem  rather  to  be  a  denial 
of  equal  protection  than  of  due  process.  See  Southern  Ry.  Co.  v.  Greene 
(1910)  216  U.  S.  400,  and  the  text,  sec.  276. 

»  Baltic  Mining  Co.  v.  Massachusetts  (1913)  231  U.  S.  68;  General  Ry. 
Signal  Co.  v.  Virginia  (1918)  246  U.  S.  500. 

« St.  Louis  &  S.  W.  R.  Co.  v.  Arkansas  (1914)  235  U.  S.  350.  Cf. 
Wallace  v.  Hines  (1920)  253  U.  S.  66. 

s  New  York  v.  Sohmer  (1915)  235  U.  S.  549. 

6 State  Tax  on  Foreign  Held  Bonds  (1872)  15  Wallace  300  (bonds); 
Sturgis  v.  Carter  (1885)  114  U.  S.  511  (stock);  Kirtland  v.  Hotchkiss 


542        THE  AMERICAN  CONSTITUTION     §  255 

tax  bonds  of  a  domestic  corporation  owned  by  and  in  the 
possession  of  a  nonresident, x  the  broad  doctrine  being  laid 
down  that  ' 'debts  can  have  no  locality  separate  from  the 
parties  to  whom  they  are  due."  This  broad  doctrine,  how- 
ever, has  not  stood  the  test  of  time.  In  the  same  year  the 
Supreme  Court  held  that  a  foreign  stockholder  might  be 
taxed  on  his  stock  in  the  State  in  which  the  concern  issuing 
it  is  incorporated. 2  This  decision  was  based  to  be  sure  upon 
the  supposed  analogy  of  a  stockholder  to  a  partner.  But 
this  analogy  is  not  sound,  for  while  a  partner  owns  the 
partnership  property  and  should  only  be  taxed  on  that 
property  in  the  State  where  it  is  located,  a  stockholder  does 
not  own  the  corporate  property  but  owns  only  a  chose  in 
action  against  the  corporation. 3  Where  a  debt  is  owed  to  a 
nonresident  but  is  secured  by  a  mortgage  on  property 
within  the  State,  it  is  held  that  the  State  where  the  mort- 
gaged property  is  located  may  levy  a  tax  on  the  mortgagee's 
interest  in  the  property. 4  Most  important  are  the  decisions 
represented  by  Metropolitan  Life  Ins.  Co.  v.  New  Orleans, 5 
which  held  that  when  a  nonresident  invests  money  in  loans 
in  a  State  that  State  may  tax  the  debts. 6  This  quite  reverses 
the  broad  doctrine  stated  in  the  case  of  State  Tax  on  Foreign 

(1879)  100  U.  S.  491  (debt,  though  secured  by  mortgage  in  another 
State);  Hawley  v.  City  of  Maiden  (1914)  232  U.  S.  I  (stock  of  a  foreign 
corporation).  "Generally  speaking,  intangible  property  in  the  nature 
of  a  debt  may  be  regarded,  for  the  purpose  of  taxation,  as  situated  at  the 
domicil  of  the  creditor  and  within  the  jurisdiction  of  the  State  where  he 
has  such  domicil.  It  is  property  within  that  State."  Buck  v.  Beach 
(1907)  206  U.  S.  392, 401. 

1  State  Tax  on  Foreign  Held  Bond  (1872)  15  Wallace  300. 

2  Tappan  v.  Merchants  Nat.  Bk.  (1873)  19  Wallace  490. 

3  See  criticism  by  Joseph  H.  Beale,  Jr.,  "The  Taxation  of  Foreign 
Corporations,"  17  Harv.  L.  Rev.,  248,  254. 

«  Savings  &  L.  Soc.  v.  Multnomah  County  (1898)  169  U.  S.  421. 

s  (1907)  205  U.  S.  395. 

6  In  the  two  earlier  cases  of  New  Orleans  v.  Stempel  (1899)  175  U.  S. 
309,  and  State  Assessors  v.  Comptoir  National  D'Escompte  (1903)  191 
U.  S.  388,  some  stress  was  laid  upon  the  fact  that  the  evidences  of  debt 
were  left  with  an  agent  in  the  taxing  State,  but  this  was  not  so  in  the 
case  cited  in  the  text. 


§  255        DUE  PROCESS  IN  TAXATION  543 

Held  Bonds  quoted  above  and  is  to  be  justified  on  the  basis 
of  compensation  for  the  protection  of  the  obligation  and  of 
the  right  to  enforce  it  in  the  State  of  the  obligor's  domicile. 
Upon  this  ground  the  decision  noted  above  as  to  corporate 
stock  is  supportable.  This  doctrine  leaves  the  decision 
that  foreign  held  bonds  cannot  be  taxed  in  the  State  of 
the  debtor  as  the  exception  instead  of  the  rule,  which 
is  explainable  only,  if  at  all,  upon  the  theory  that  bonds 
are  to  be  viewed  not  as  evidences  of  obligations,  but  as 
constituting  the  obligations,  and  so  having  their  situs 
where  they  actually  are. 

In  the  case  of  Buck  v.  Beach1  the  Supreme  Court  had 
before  it  an  attempt  of  a  State  to  tax  promissory  notes 
which  were  within  its  jurisdiction,  although  both  the 
owner  and  the  makers  were  nonresidents.  The  court 
held  that  the  mere  physical  presence  of  the  evidence  of 
debt  within  a  State  would  not  give  that  State  jurisdic- 
tion to  tax  the  debt. 2  This  decision  would  be  equally  ap- 
plicable to  corporate  stock.  It  is  intimated  that  bonds 
are  sufficiently  analogous  to  tangible  property  to  give  them 
a  situs  for  taxation  at  the  place  where  they  are. 3  It  is  sub- 
mitted that  a  distinction  between  bonds  on  the  one  hand  ^ 
and  stock  and  negotiable  paper  on  the  other  is  not  justi- 
fied. If  it  is  not  made,  there  is  no  present  justification  for 
the  decision  in  State  Tax  on  Foreign  Held  Bonds. 4 

We  see  from  the  cases  discussed  in  this  section  that  it  is 
quite  possible  that  a  chose  in  action  may  be  taxed  both  at  the 

1  (1907)  206  U.  S.  392. 

2  In  Wheeler  v.  New  York  (1914)  233  U.  S.  434,  Justice  Holmes  sug- 
gests that  Buck  v.  Beach  was  decided  on  the  theory  that  the  notes  were 
only  temporarily  and  improperly  in  the  taxing  State,  and  that  the  de- 
cision might  have  been  different  except  for  these  facts.    Justice  Mc- 
Kenna  refutes  this  interpretation,  and  holds  it  unnecessary  to  the  deci- 
sion in  the  instant  case.     Three  Justices  concurred  with  Holmes,  one 
with  McKenna  and  three  dissented,  so  that  the  question  is  put  very 
much  in  doubt.    See  also  De  Ganey  v.  Lederer  (1919)  250  U.  S.  376. 

3  New  Orleans  v.  Stempel  (1899)  175  U.  S.  309,  322;  Buck  t>.  Beach 
(1907)  206  U.  S.  392,  403. 

«  (1872)  15  Wallace  300. 


i 


544  THE  AMERICAN  CONSTITUTION  §§  256, 257 

domicile  of  the  obligor  and  at  the  domicile  of  the  obligee,  but 
double  taxation  is  not  unconstitutional. J 

§256.  State  Income  Taxes.  In  general  conformity  to 
the  principles  underlying  the  rights  to  tax  choses  in  action, 
it  is  held  that  a  State  may  impose  a  tax  on  all  of  the  income 
of  a  resident  though  part  of  it  is  derived  from  without  the 
State. 2  Also  a  State  may  levy  a  tax  on  income  derived  by  a 
nonresident,  from  any  business,  trade,  profession  or  occu- 
pation carried  on  within  the  State.3 

§257.  State  Inheritance  Taxes  on  Realty  and  Chattels. 
State  inheritance  taxes  have  become  of  increasing  import- 
ance in  recent  years,  and  the  cases  in  this  field  frequently 
raise  the  question  of  jurisdiction  in  the  taxing  State.  In 
approaching  this  question  it  should  be  born  in  mind  that 
the  inheritance  tax  is  not  a  tax  on  property  but  upon  the 
right  to  take  or  to  dispose  of  the  property  involved. 4  There 
is  no  question  that  the  State  in  which  real  property  or 
chattels  are  located  may  tax  their  transfer. s  It  is  also  clear 
that  the  State  of  a  decedent's  residence  cannot  tax  the 
succession  to  his  real  property  located  in  another  State.6 
The  same  should  be  true  of  chattels,  for  in  fact  it  is  the  State 
where  the  chattels  are  located  that  controls  the  succession, 
and,  though  States  generally  follow  the  law  of  the  deced- 
ent's domicile  with  regard  to  the  inheritance  of  chattels, 
this  is  a  matter  of  comity  and  not  of  obligation,  and  the 

1  Shaffer  v.  Carter  (1920)  252  U.  S.  37. 

a  Maguire  v.  Trefrey  (1920)  253  U.  S.  12. 

a  Shaffer  v.  Carter  (1920)  252  U.  S.  37;  Travis  v.  Yale  &  Towne  M'f  'g. 
Co.  (1920)  252  U.  S.  60,  though  in  this  latter  case  the  tax  was  held  un- 
constitutional for  other  reasons. 

Whether,  if  a  person  owns  bonds,  stock  or  negotiable  paper  which  are 
in  a  State  which  is  neither  the  domicile  of  the  owner  or  of  the  debtor, 
that  State  may  tax  the  income,  seems  not  to  have  been  considered.  But 
see  the  language  of  the  court  in  De  Ganey  v.  Lederer  (1919)  250  U.  S.  376. 

4Knowlton  v.  Moore  (1900)  178  U.  S.  41  (containing  an  interesting 
history  of  death  duties);  Blackstone  v.  Miller  (1903)  188  U.  S.  189. 

s  Mager  v.  Grima  (1850)  8  Howard  490;  Blackstone  v.  Miller- (1903) 
1 88  U.  S.  189,  206;  Ross,  Inheritance  Taxation,  sees.  171  and  172. 

6  Ross,  Inheritance  Taxation,  sec.  171;  Gleason  and  Otis,  Inheritance 
Taxation  (2nd  ed.),  307. 


§  258        DUE  PROCESS  IN  TAXATION  545 

privileges  granted  by  the  State  of  decedent's  domicile  have 
in  fact  no  extraterritorial  effect.  And  yet  the  compar- 
atively few  cases  in  the  state  courts  which  have  dealt  with  a 
tax  imposed  by  the  State  of  decedent's  residence  upon  the 
succession  to  chattels  (as  distinguished  from  intangible 
property)  located  without  the  State  have  held  such  a  tax 
valid.1  This  is  only  supportable  under  the  maxim  mobilia 
sequuntur  personam,  but,  as  we  have  seen,  this  has  been 
held  by  the  Supreme  Court  of  the  United  States  not  to 
apply  where  a  tax  is  sought  to  be  imposed  upon  the  chattel 
itself  which  is  outside  of  the  taxing  State,  *  and  it  is  reason- 
ably to  be  hoped  that  the  Supreme  Court  will  hold  that  the 
maxim  is  equally  inapplicable  when  a  State  seeks  to  impose 
a  tax  upon  the  succession  to  chattels  located  outside  of  its 
jurisdiction. 

§258.  State  Inheritance  Taxes  on  Intangible  Property. 
When  a  person  dies  owning  intangible  property  such  as 
bonds,  stock,  negotiable  paper,  or  debts,  since  it  is  held,  as 
we  have  seen  above,  that  such  property  has  its  situs  at  the 
domicile  of  the  owner,  the  State  of  the  owner's  domicile 
may  impose  a  succession  tax  upon  the  privilege  of  trans- 
mitting and  inheriting  such  property. 3  The  United  States 
Supreme  Court  has  also  held  that,  when  a  person  dies  having 
a  bank  deposit  in  a  State  other  than  that  of  his  residence, 
and  being  owed  a  debt  by  one  who  lives  in  another  State, 
the  State  where  the  bank  is  located  and  where  the  debtor 
resides  may  levy  an  inheritance  tax  on  the  deposit  and 
debt.4  This  is  "not  because  of  any  theoretical  speculation 
concerning  the  whereabouts  of  the  debt,  but  because  of  the 
practical  fact  of  its  (the  State's)  power  over  the  person  of 
the  debtor."  This  would  seem  equally  true  of  stock  of  a 

1  Matter  of  Swift  (1893)  137  N.  Y.  77,  Gray,  J.,  dissenting  (where 
the  court  laid  down  a  different  rule  for  realty  and  chattels) ;  46  L.  R.  A . 
(N.  5.)  1179  n.;  Ross,  Inheritance  Taxation,  sec.  173. 

3  Delaware  L.  &  W.  R.  Co.  v.  Pennsylvania  (1905)  198  U.  S.  341. 

3  Matter  of  Estate  of  Romaine  (1891)  127  N.  Y.  80;  Frothingham  i>. 
Shaw  (1899)  175  Mass.  59.  This  is  assumed  in  Blackstone  v.  Miller 
(1903)  188  U.  S.  189. 

«  Blackstone  v.  Miller  (1903)  188  U.  S.  189. 

35 


546       THE  AMERICAN  CONSTITUTION     §  258 

domestic  corporation  owned  by  a  nonresident.1  The 
Supreme  Court  has  suggested  that  this  may  not  be  true  of 
bonds  and  negotiable  instruments,  not  present  in  the  State 
where  the  debtor  is  a  resident,  and  of  which  the  owner  is  a 
nonresident,  since  "the  debt  is  inseparable  from  the  paper 
which  declares  and  constitutes  it,  by  a  tradition  which 
comes  down  from  more  archaic  conditions. ' ' 2  This  suggests 
a  third  possibility,  namely  that  the  evidence  of  the  oblig- 
ation is  in  a  State  other  than  that  of  the  domicile  of  either 
the  obligor  or  the  owner.  Under  these  circumstances  it 
has  been  declared  by  the  Supreme  Court  that  a  State  may 
levy  an  inheritance  tax  upon  the  transfer  of  bonds  and 
negotiable  paper,  including,  of  course,  bank  bills.3  Justice 
Holmes  asserts  that 

"it  is  not  primitive  tradition  alone  that  gives  their 
peculiarities  to  bonds,  but  a  tradition  laid  hold  of,  modi- 
fied and  adapted  to  the  convenience  and  understanding  of 
business  men.  The  same  convenience  and  understanding 
apply  to  bills  and  notes,  as  no  one  would  doubt  in  the  case 
of  bank  notes,  which  technically  do  not  differ  from 
others."4 

Justice  McKenna  concurring  did  not  rest  his  opinion  upon 
the  ground  that  bonds  and  negotiable  paper  are  sub- 
stantially property  in  themselves,  but  upon  the  ground  that 
the  State  where  they  are  can  control  the  transfer  of  these 
evidences.  Whether  the  same  rule  should  apply  to  corpor- 
ate stock  is  not  entirely  clear,  but  it  would  seem  that  it 

1  Matter  of  Bronson  (1896)  150  N.  Y.  i;  Ross,  Inheritance  Taxation, 
sec.  182.  This  view  would  undoubtedly  be  taken  by  the  Supreme  Court 
of  the  United  States  on  the  authority  of  Tappan  v.  Merchants'  Nat.  Bk. 
(1873)  19  Wallace  490,  holding  that  a  State  may  tax  a  nonresident 
stockholder  on  stock  of  a  domestic  corporation. 

3  Blackstone  v.  Miller  (1903)  188  U.  S.  189,  206.    To  this  effect  with 
regard  to  bonds  is  Matter  of  Bronson  (1896)  150  N.  Y.  I,  two  judges 
dissenting.     See  also  Gleason  and  Otis,  Inheritance  Taxation  (2nd  ed.), 

3I3. 

s  Wheeler  v.  Sohmer  (1914)  233  U.  S.  434,  three  justices  dissenting. 

4  Ibid.,  439. 


§  259        DUE  PROCESS  IN  TAXATION  547 

should  in  view  of  the  fact  that  certificates  of  stock  are  freely 
bought  and  sold  and  used  as  collateral.  x 

§259.  Notice  and  Hearing  in  Taxation. 2  It  is  not  always 
true  that  due  process  requires  notice  and  an  opportunity  to  be 
heard  when  property  is  taken  by  taxation.  Whether  such 
notice  and  hearing  are  necessary  depends  upon  the  nature  of 
the  tax — whether  it  is  a  specific  tax  or  one  levied  ad  valorem. 

"Of  the  different  kinds  of  taxes  which  the  State  may 
impose,  there  is  a  vast  number  of  which,  from  their 
nature,  no  notice  can  be  given  to  the  taxpayer,  nor 
would  notice  be  of  any  possible  advantage  to  him,  such  as 
poll-taxes,  license  taxes  (not  dependent  upon  the  extent 
of  his  business)  and,  generally,  specific  taxes  on  things 
or  persons  or  occupations.  In  such  cases  the  legislation 
authorizing  the  tax  fixes  its  amount,  and  that  is  the  end 
of  the  matter.  If  the  tax  be  not  paid  the  property  of  the 
delinquent  may  be  sold,  and  he  be  thus  deprived  of  his 
property.  Yet  there  is  no  question  that  the  proceeding 
is  due  process  of  law.  ...  In  such  cases  there  is  no 
necessity  for  notice  or  hearing.  The  amount  of  the  tax 
would  not  be  changed  by  it.  But  where  a  tax  is  levied 
on  property  not  specifically,  but  according  to  its  value, 
to  be  ascertained  by  assessors  appointed  for  that  purpose, 
upon  such  evidence  as  they  may  obtain,  a  different  prin- 
ciple conies  in."3 

But  where  the  tax  is  based  upon  the  value  of  property  it  is 
not  necessary  that  an  opportunity  for  a  hearing  be  given 

1  In  Matter  of  James  (1894)  144  N.  Y.  6,  it  was  held  that  stock  cer- 
tificates of  foreign  corporations,  being  within  the  State  but  owned  by 
nonresidents,  were  not  intended  by  the  Legislature  to  be  included  in  the 
term  property  in  the  inheritance  tax  law.  See  also  People  v.  Griffith 
(1910)  245  111.  532.  But  in  Simpson  v.  Jersey  City  Co.  (1900)  165  N.  Y. 
193,  such  certificates  were  held  subject  to  attachment,  and  in  People 
ex  rel  Hatch  v.  Reardon  (1906)  184  N.  Y.  431,  the  court  declared  that  a 
statute  which  expressly  taxed  the  transfer  of  such  certificates  was 
constitutional. 

a  With  regard  to  due  process  and  administrative  action,  see  sec.  156. 

3  Hagar  v.  Reclamation  District  (1884)  in  U.  S.  701,  709. 


548       THE  AMERICAN  CONSTITUTION     §  259 

before  it  is  assessed,  as  long  as  the  property  owner  has  such 
opportunity  before  the  tax  becomes  irrevocably  fixed. 
Such  opportunity  may  be  afforded  before  a  board  of  revi- 
sion, or  it  is  sufficient  if  the  tax  can  be  enforced  only  through 
judicial  proceeding1;  but  the  law  must  afford  the  property 
owner  an  opportunity  "to  support  his  allegations  by 
argument,  however  brief;  and,  if  need  be,  by  proof, 
however  informal."2  It  is  not  necessary  that  the  notice 
of  an  opportunity  for  a  hearing  be  personal ;  it  is  sufficient 
if  it  is  "either  personal,  by  publication,  or  by  a  law  fixing 
the  time  and  place  of  the  hearing."3 

1  Hagar  v.  Reclamation  District  (1884)  in  U.  S.  701,  709. 

a  Londoner  v.  City  &  County  of  Denver  (1908)  210  U.  S.  373,  386. 

a  Ibid.,  385.    See  Taylor,  Due  Process  of  Law,  sec.  159. 


CHAPTER  XXXI 

DUE  PROCESS  IN  EMINENT  DOMAIN 

§260.  When  Property  is  Taken  by  Eminent  Domain  for 
a  Public  Use  There  is  Due  Process.  The  Fifth  Amendment 
to  the  Federal  Constitution  ends  with  the  provision,  "nor 
shall  private  property  be  taken  for  public  use  without  just 
compensation,"  but  this  amendment  applies  only  to  the 
national  government.  There  are  now  similar  provisions 
in  all  of  the  State  Constitutions  except  those  of  Kansas, 
New  Hampshire  and  North  Carolina, *  but  the  Constitution 
of  the  United  States  does  not  expressly  prohibit  the  taking 
of  private  property  by  the  States  without  compensation, 
under  their  power  of  eminent  domain.  If  they  are  to  be 
visited  with  such  a  limitation  it  must  be  under  the  due 
process  clause  of  the  Fourteenth  Amendment.  Since  the 
Fifth  Amendment  contains  both  a  due  process  clause  and  a 
clause  requiring  compensation  for  property  taken  for  a 
public  use,  it  might  be  argued  that  the  latter  limitation  is 
not  covered  by  the  due  process  clause  of  the  Fourteenth 
Amendment, 2  but  the  Supreme  Court  of  the  United  States 
has  now  repeatedly  declared  that  to  take  private  property 
for  a  public  use  without  just  compensation  is  mere  spoli- 
ation, and  so  contrary  to  the  fundamental  principles  of 
justice  and  liberty  as  to  be  entirely  wanting  in  due  process. 3 

1  Lewis,  Eminent  Domain  (3rd  ed.)  sees.  16  to  61.  In  Kansas  a  right 
of  way  cannot  be  appropriated  to  a  corporation  without  compensation. 

a  See  Justice  Miller's  comment  in  Davidson  v.  New  Orleans  (1877)  96 
U.  S.  97,  105. 

»Searl  v.  School  Dist.  (1890)  133  U.  S.  553,  562;  Swart  v.  Rechel 
(1895)  159  U.  S.  380,  398,  Chicago  B.  &  G.  R.  Co.  v  Chicago  (1897)  166 
U,  S.  226.  Even  before  the  adoption  of  state  due  process  clauses  or  of 
the  federal  due  process  clause  applicable  to  the  States  the  taking  of 

549 


550       THE  AMERICAN  CONSTITUTION     §  261 

A  fortiori  is  it  unconstitutional  to  take  private  property  for 
a  private  use  even  though  compensation  be  made.1  The 
power  of  eminent  domain,  like  the  taxing  power,  inheres  in 
a  government  because  it  is  necessary  for  the  conduct  of 
government  and  for  the  advancement  of  the  public  welfare. 
Inhering  in  the  State  for  the  benefit  of  the  public  this  power 
can  only  be  used  for  a  public  purpose.  And  what  is  said  of 
the  power  of  eminent  domain  applies  equally  to  the  use 
of  public  highways  which  are  dedicated  or  acquired  for 
public  purposes  only.  But  under  the  proper  exercise  of  the 
power  of  eminent  domain  all  kinds  of  property  may  be 
taken,  including  franchises  and  contracts.  This  does  not  im- 
pair the  obligations  of  contracts,  but  merely  allows  their 
acquisition. 2  Property  may  also  be  taken  which  has  itself 
been  acquired  by  eminent  domain,  and  is  being  devoted  to  a 
public  use. 3  The  power  of  eminent  domain  is  a  sovereign 
power4  and  can  only  be  exercised  by  the  State  or  by  one 
to  whom  it  has  been  granted,  either  specifically,  or  as  a 
member  of  a  class.5  This  power,  however,  cannot  be 
exercised  by  a  State  to  take  property  belonging  to  the 
United  States  government. 6 

§261.  Power  of  Eminent  Domain  May  Not  Be  Contracted 
Away.  In  a  recent  case  the  question  was  directly  raised  as 
to  whether  a  State  may  contract  away  its  right  to  exercise  the 
power  of  eminent  domain.  The  Supreme  Court  disposed  of 
this  case  unanimously  and  summarily  on  the  ground  that 

property  for  public  purposes  without  compensation  was  condemned  in 
Gardner  v.  Newburgh  (1816,  N.  Y.)  2  Johns.  Ch.  162;  Sinnickson  v. 
Johnson  (1839)  17  N.  J.  Law  129. 

1  Missouri  Pac.  Ry.  v.  Nebraska  (1896)  164  U.  S.  403,  417,  and  cases 
there  cited. 

3  West  River  Bridge  Co.  v.  Dix  (1848)  6  Howard  507;  City  of  Cin- 
cinnati v.  Louisville  &  N.  R.  R.  Co.  (1912)  223  U.  S.  390;  Long  Island 
W.  S.  Co.  v.  Brooklyn  (1897)  166  U.  S.  685. 

s  United  States  v.  Gettysburg  El.  Ry.  (1896)  160  U.  S.  668,  685. 

*  United  States  v.  Jones  (1883)  109  U.  S.  513,  578;  City  of  Cincinnati 
v.  Louisville  &  N.  R.  R.  Co.  (1912)  223  U.  S.  390,  404. 

s  Lewis,  Eminent  Domain  (3rd  ed.)  sec.  367. 

6  Utah  Power  etc.  Co.  v.  United  States  (1917)  243  U.  S.  389. 


§  262  DUE  PROCESS  IN  EMINENT  DOMAIN  551 

4 '  there  can  be  now,  in  view  of  the  many  decisions  of  this 
court  on  the  subject,  no  room  for  challenging  the  general 
proposition  that  the  States  cannot  by  virtue  of  the  con- 
tract clause  be  held  to  have  divested  themselves  by  con- 
tract of  the  right  to  exert  their  governmental  authority  in 
matters  which  from  their  very  nature  so  concern  that 
authority  that  to  restrain  its  exercise  by  contract  would 
be  a  renunciation  of  power  to  legislate  for  the  preserva- 
tion of  society  or  to  secure  the  performance  of  essen- 
tial governmental  duties."1 

§262.  What  Is  a  Public  Use  in  Eminent  Domain.  When 
we  come  to  consider  what  is  a  public  use  for  which  property 
may  be  taken  under  the  power  of  eminent  domain  we  find 
certain  cases  in  which  the  conclusion  is  quite  obvious. 
When  the  property  is  to  be  used  by  a  State  or  one  of  its 
subdivisions,  or  when  it  is  going  to  be  put  directly  to  the 
use  of  the  people  of  a  community  as  a  whole,  and  is  neces- 
sary so  that  the  public  may  have  a  service  important  to  their 
welfare  or  convenience,  we  seem  quite  clearly  to  have  a 
public  use.  It  would  seem  clear,  for  instance,  that  property 
is  taken  for  a  public  use  when  taken  for  public  buildings, 
such  as  city  halls,  schools  and  the  like2;  also  when  taken  for 
a  sewage  system,  or  for  supplying  gas,  water  and  electricity 
to  inhabitants  of  a  city,  town,  or  district. 3  Property  is  also 
taken  for  a  public  use  when  taken  for  a  highway.4  The 
same  is  true  of  toll  roads,  bridges  and  ferries,5  and,  of  a 
canal  used  as  a  highway.6  Railroads,  though  constructed 
by  private  capital,  are  so  essentially  highways  that  the  well- 
established  rule  with  regard  to  highways  has  naturally  been 

1  Pennsylvania  Hospital  v.  Philadelphia  (1917)  245  U.  S.  20,  23. 

3  Lewis,  Eminent  Domain  (yd  ed.)  sec.  270,  and  cases  cited;  Kohl  v. 
United  States  (1875)  91  U.  S.  367. 

3  Lewis,  Eminent  Domain  (3d  ed.)  sees.  267  and  268,  and  cases 
cited;  United  States  v.  Great  Falls  M'f'g.  Co.  (1884)  112  U.  S.  645. 

<  Luxton  v.  North  River  Bridge  Co.  (1894)  153  U.  S.  525,  529. 

s  Ibid. 

6  United  States  v.  Jones  (1883)  109  U.  S.  513;  Chesapeake,  etc.  Canal 
Co.  v.  Key  (1829)  3  Cranch  C.  C.  599. 


552       THE  AMERICAN  CONSTITUTION     §  262 

applied,  and  the  construction  of  a  railway  with  its  necessary 
appurtenances  has  been  held  a  public  use. x  It  is  not  a  far 
step  from  the  carriers  of  goods  by  rail  to  those  who  trans- 
port oil  for  the  public  by  pipe  lines, 2  or  to  those  who  trans- 
mit messages  for  the  public  by  telegraph  or  telephone.3 
To  these  public  uses  may  be  added  irrigation  of  arid  tracts 
of  land,4  drainage  of  land  whereby  the  community  at  large 
will  be  benefited,5  public  parks,6  and  public  cemeteries.7 

On  the  other  hand  it  has  been  held  that  taking  property 
for  a  private  grain  elevator  is  a  private  use  and  unconstitu- 
tional. 8  Also  it  has  been  held  unconstitutional  for  the  same 
reason  to  take  land  for  stores  in  a  city.9 

The  so-called  "mill  acts,"  which  permit,  upon  compen- 
sation, the  flooding  of  the  land  of  others  for  the  creation  of 
water  power  for  mills,  have  caused  the  courts  much  trouble. I0 
As  a  matter  of  fact  this  practice  seems  to  have  been  general 
along  the  Atlantic  seaboard  before  the  Revolution.  The  expla- 
nation is,  perhaps,  twofold :  (i)  In  the  earlier  days  in  England 
the  right  to  conduct  a  gristmill  was  apparently  considered 
a  manorial  franchise,  which  carried  with  it  a  duty  to  the 
public,  and,  therefore,  made  it  a  sort  of  public  institution, 

1  Cherokee  Nation  v.  Kansas  Ry.  Co.  (1890)  135  U.  S.  641,  656;  Union 
Lime  Co.  v.  Chicago  &  N.  W.  Ry.  Co.  (1914)  233  U.  S.  211. 

2  West  Va.  Trans.  Co.  v.  Volcanic  C.  &  O.  Co.  (1872)  5  W.  Va.  382. 

a  Pierce  v.  Drew  (1883)  136  Mass.  75;  American  T.  &  T.  Co.  v.  St. 
Louis  etc.  Ry.  Co.  (1907)  202  Mo.  656. 

«  Fallbrook  Irrigation  Dist.  v.  Bradley  (1896)  164  U.  S.  112. 

s  Sweet  v.  Rechel  (1895)  159  U.  S.  380. 

6  Shoemaker  v.  United  States  (1893)  147  U.  S.  282.  To  acquire  land 
as  a  memorial  of  a  great  battle  is  also  a  public  use.  United  States  v. 
Gettysburg  El.  Ry.  Co.'  (1896)  160  U.  S.  668.  The  grant  of  the  power 
to  a  corporation  will  be  scrutinized  more  closely  than  the  exercise  of  it 
by  the  State.  Ibid. 

1 15  Cyc.  600. 

8  Missouri  Pac.  Ry.  Co.  v.  Nebraska  (1896)  164  U.  S.  403.  But  a 
public  elevator  has  been  held  a  public  use.  Stewart  v.  Great  Northern 
R.  R.  Co.  (1896)  65  Minn.  515. 

'  Opinion  of  the  Justices  (1910)  204  Mass.  607. 

10  See  the  interesting  discussion  of  the  subject  in  Lewis,  Eminent 
Domain,  sees.  275  to  280. 


§  262  DUE  PROCESS  IN  EMINENT  DOMAIN  553 

justifying  the  grant  of  eminent  domain.  (2)  In  primitive 
agricultural  communities,  before  the  invention  of  steam, 
local  gristmills  driven  by  water  power  would  be  necessary 
to  the  public,  and  eminent  domain  would  often  be  necessary 
in  order  to  get  the  power.  So  the  practice  became 
established,  and  has  been  continued,  though  these  reasons 
no  longer  exist.1  In  other  States,  however,  it  is  held 
unconstitutional  to  grant  the  power  for  this  purpose. 3 

In  some  of  our  western  States  a  more  liberal  doctrine  has 
developed  with  regard  to  eminent  domain  than  that  which 
has  just  been  discussed,  a  doctrine  which  substitutes ' '  public 
benefit"  through  the  development  of  the  natural  resources 
of  the  community  for  "public  use."  This  doctrine  has 
developed  particularly  where  mining  is  a  chief  industry,  and 
where  there  is  a  scarcity  of  water,  and  irrigation  is  necessary 
to  successful  agriculture.  Two  decisions  of  the  court  of  last 
resort,  both  involving  legislation  of  the  State  of  Utah,  are 
instructive  in  this  connection,  and  show  the  inclination  of 
the  Supreme  Court  to  allow  the  determination  of  what  is  a 
public  use  to  be  largely  influenced  by  special  circumstances 
existing  in  each  community.  In  Clark  v.  Nash3  it  was  held 
that  a  statute  allowing  private  individuals  to  condemn 
rights  of  way  across  the  lands  of  others  to  carry  water  for 
irrigation  was  constitutional.  The  court  admitted  that 
this  probably  would  not  be  so  in  other  States,  but  believed 
that  the  Utah  legislature  and  court  were  justified  in  reaching 
the  conclusion  which  they  did  in  view  of  the  special  circum- 
stances existing  there. 

1  Olmstead  t>.  Camp  (1866)  33  Conn.  532;  Boston  &  Rox.  Mill  Corp.  v. 
Newman  (1832,  Mass.)  12  Pickering  467;  Great  Falls  Manf.  Co.  v.  Fer- 
nald  (1867)  47  N.  H.  444;  Head  v.  Amoskeag  Manf.  Co.  (1885)  113  U.  S. 
9,  upholding  a  New  Hampshire  statute,  and  giving  countenance  to  the 
later  Massachusetts  view  that  there  is  not  here  a  taking  but  the  regula- 
tion of  riparian  rights.    See  Lowell  v.  Boston  (1873)   in  Mass.  454 
464. 

2  Ryersont;.  Brown  (1877)  35  Mich.  333;  Houghbridge  t>.  Harris  (1871) 
42  Ga.  501;  Gaylord  v.  Sanitary  Dist.  (1903)  204  111.  576;  Dice  v.  Sher- 
man (1907)  107  Va.  424. 

8  (1905)  198  U.  S.  361. 


554       THE  AMERICAN  CONSTITUTION     §  263 

"But,"  the  court  said,  "we  do  not  desire  to  be  under- 
stood as  approving  of  the  broad  proposition  that  private 
property  may  be  taken  in  all  cases  where  the  taking  may 
promote  the  public  interest  and  tend  to  develop  the 
natural  resources  of  the  State.  We  simply  say  that  in 
this  particular  case,  and  upon  the  facts  stated  in  the 
findings  of  the  court,  and  having  reference  to  the  condi- 
tions already  stated,  we  are  of  the  opinion  that  the  use 
is  a  public  one,  although  the  taking  of  the  right  of  way 
is  for  the  purpose  simply  of  thereby  obtaining  the  water 
for  an  individual,  where  it  is  absolutely  necessary  to 
enable  him  to  make  any  use  whatever  of  his  land,  and 
which  will  be  valuable  and  fertile  only  if  water  can  be 
obtained."1 

The  same  attitude  led  the  court  to  hold  in  Strickley  v.  High- 
land  Boy  Mining  Co.  *  that  individual  mine  owners  may  be 
authorized  to  condemn  a  right  of  way  across  adjoining  prop- 
erty in  order  to  get  their  products  to  the  railroad. 

§263.  What  Is  a  Taking  in  Eminent  Domain.  Since 
rights  in  chattels  and  lands  and  not  the  chattels  and  lands 
themselves  constitute  property,  the  infringement  of  any 
property  rights  is  a  taking,  which  must  be  justified  under  the 
due  process  clause,  though  the  owner  is  not  actually  de- 
prived of  any  subject. 3  If,  however,  a  private  property 
right  is  held  subject  to  a  public  right,  the  exercise  of  the 
public  right  will  not  constitute  a  taking  of  the  private 
property  right.  So  where  a  person  owns  the  bed  of  a 
navigable  stream,  his  rights  in  the  river  bed  and  to  the  use 
of  the  water  in  the  stream  are  held  subject  to  the  public 

1  Clark  v.  Nash  (1905)  198  U.  S.  361,  369. 

3  (1906)  200  U.  S.  527.  See  also  Montaire  Mining  Co.  v.  Columbus 
Co.  et  al.  (1918,  Utah)  174  Pac.  172,  where  it  was  held  that  one  mining 
company  could  constitutionally  be  authorized  to  condemn  a  part  use  of 
a  tunnel  constructed  by  another  mining  company,  where  the  whole 
capacity  of  the  tunnel  was  not  being  used.  The  court  divided  three  to 
two. 

3  Pumpelly  v.  Green  Bay  Co.  (1871)  13  Wallace  166;  Cooley,  Con- 
stitutional Limitations  (7th  ed.),  787;  12  Corpus  Juris  1215. 


§  263  DUE  PROCESS  IN  EMINENT  DOMAIN  555 

right  of  navigation,  and,  if  the  stream  is  an  interstate  high- 
way, subject  to  the  right  of  Congress  to  regulate. 

"  If,  in  the  judgment  of  Congress,  the  use  of  the  bottom 
of  the  river  is  proper  for  the  placing  therein  structures  in 
aid  of  navigation,  it  is  not  thereby  taking  private  property 
for  a  public  use,  for  the  owner's  title  was  in  the  very  na- 
ture subject  to  that  use  in  the  interest  of  public 
navigation."1 

When  a  property  owner's  line  goes  to  the  bank  of  a  navi- 
gable stream,  Congress  may,  for  the  improvement  of  inter- 
state navigation,  interfere  with  the  riparian  owner's  access 
to  the  water  without  making  compensation. 2  Other  public 
uses  to  which  a  state  may  put  a  stream  without  making 
compensation  to  persons  who  are  adversely  affected,  are 
drainage  of  adjoining  land,3  and  the  supplying  of  cities 
with  water.4  But  the  state  may  not  take  the  bed  of  a 
nonnavigable  stream  to  improve  and  make  navigable  with- 
out compensating  the  owner.5 

When  the  state  or  municipality  owns  the  fee 
in  highways  and  streets  the  abutting  landowners' 
easements  of  light,  air,  access,  and  lateral  support 
are  held  subject  to  reasonable  highway  purposes. 
Any  further  use  which  interferes  with  the  easements  con- 
stitutes a  taking.  When  the  state  or  municipality  has 
merely  an  easement  in  highways  or  streets,  any  uses  of  the 
highways  and  streets  beyond  those  reasonably  contemplated 
for  highway  purposes  puts  an  added  burden  upon  the  fee, 
and  so  constitutes  a  taking.  The  construction  of  street 
railways,  and  of  sewer,  gas,  and  water  systems  are  generally 

1  United  States  v.  Chandler- Dunbar  W.  P.  Co.  (1913)  229  U.  S.  53,  62. 

a  Scranton  v.  Wheeler  (1900)  179  U.  S.  141.  And  see  Eldridge  v. 
Trezevant  (1896)  160  U.  S.  453  (property  bordering  on  Mississippi  sub- 
ject to  levee  construction). 

3  Chicago,  B.  &  Q.  Ry.  Co.  v.  Illinois  (1906)  200  U.  S.  561. 

«  St.  Anthony  Falls  W.  P.  Co.  v.  St.  Paul  Water  Commissioners  (1897) 
1 68  U.  S.  349. 

s  Morgan  v.  King  (1866)  35  N.  Y.  454. 


556       THE  AMERICAN  CONSTITUTION    §  264 

held  to  be  proper  highway  purposes. x  On  the  other  hand 
reasonable  purposes  are  generally  held  not  to  include  the 
placing  in  the  streets  of  telegraph  or  telephone  poles  and 
wires,  or  of  electric  lighting  poles  and  wires,  except  when  the 
latter  are  to  be  used  to  light  the  streets. 3  There  is  diversity 
of  view  as  to  whether  the  construction  of  elevated  railroads, 
subways,  and  steam  railroads  constitute  reasonable  street 
purposes. 3  It  would  seem  that  steam  railroads  should  not 
be  held  to  come  within  this  category,  but  that  elevated  rail- 
ways and  subways  should,  at  least  where  the  fee  or  ease- 
ment in  the  property  has  been  acquired  since  these  means 
of  conveyance  have  come  into  use. 

§264.  Measure  of  Compensation  in  Eminent  Domain. 
If  an  entire  lot  or  tract  of  land  is  taken  under  the  power  of 
eminent  domain,  the  measure  of  compensation  is  the  market 
value  of  that  land.  But  a  taking  may  consist  of  injury  to 
one's  proprietary  rights  without  the  actual  taking  of  any 
land,  or  there  may  be  an  injury  in  addition  to  the  taking  of 
part  of  one's  land,  as,  for  instance,  where  an  easement 
appurtenant  to  land  is  interferred  with,  or  an  easement  in 
one's  land  is  acquired.  In  such  a  case,  also,  the  taking 
must  be  fully  paid  for.  On  the  other  hand  special  benefits 
may  accrue  to  the  person  whose  property  has  been  taken,  as 
where  the  building  of  a  highway  through  his  land  drains  a 
swamp,  or  gives  him  an  easement  of  access  to  the  highway. 
In  all  States  except  Mississippi  such  special  benefits  may  be 
set  off  against  damages  to  property  rights  in  lands  which 
have  not  been  taken.  As  to  whether  special  benefits  may 
be  set  off  against  the  value  of  land  which  is  taken,  there  is 
irreconcilable  conflict.  Since  the  purpose  of  compensation 
in  condemnation  proceedings  is  to  put  the  person  whose 
property  right  has  been  interfered  with  in  as  good  a  position 
as  his  neighbor  who  has  not  suffered  such  interference  it 
would  seem  that  special  benefits  should  be  deducted  from 
the  full  sum  of  damage  occasioned  to  property  rights. 
Where  the  land  remaining  to  a  person,  whose  property  rights 

1  Lewis,  Eminent  Domain  (3rd  ed.)»  sees.  161  and  183  to  185. 

3  Ibid.,  sees,  187  and  188.  3  2bid.,  sees.  151  to  157  and  162. 


§  265  DUE  PROCESS  IN  EMINENT  DOMAIN  557 

have  been  adversely  affected,  is  benefited  in  common  with 
the  land  of  other  persons  in  the  locality,  this  general  benefit 
should  clearly  not  be  deducted  from  the  value  of  proprietary 
rights  which  have  been  taken,  though  some  courts  do,  in 
fact,  allow  it  to  be  deducted  from  incidental  damages,  and 
some  even  allow  it  to  be  deducted  from  the  value  of  land 
which  is  taken.  If  the  object  of  compensation  is  to  put  the 
person  whose  proprietary  rights  have  been  taken  in  as  good 
a  position  as  if  such  rights  had  not  been  interfered  with,  he 
should  not  have  deducted  from  his  compensation  benefits 
which  those  whose  property  has  not  been  taken  are  allowed 
to  enjoy  unmolested. x  Besides,  the  general  benefit  is  usu- 
ally the  basis  of  assessment  for  the  cost  of  resulting  improve- 
ments, and  a  person  is  put  in  a  hard  position  if  his  recovery 
is  reduced  to  the  extent  to  which  he  has  shared  in  a  general 
benefit,  and  then  he  is  assessed  for  the  improvement  on  the 
basis  of  such  benefit. 2 

§265.  Notice  and  Hearing  in  Eminent  Domain. 3  As  we 
have  seen,  it  is  a  general  principle  that,  when  title  to  or 
possession  of  property  is  taken  by  authority  of  the  State, 
"the  party  to  be  affected  shall  have  notice  and  an  oppor- 
tunity to  be  heard."4  This  principle  clearly  applies  to  the 
condemnation  of  any  proprietary  interest  under  the  power 
of  eminent  domain. s  Notice  by  publication  is  sufficient  as 


1  See  the  excellent  treatment  of  the  subject  of  "Just  Compensation 
and  Damages"  in  Lewis,  Eminent  Domain  (3rd  ed.),  chap.  20,  with 
exhaustive  collection  of  authorities.      However,  the  Supreme  Court 
has  held  that  it  is  not  unconstitutional  to  deduct  increase  in  market 
value  as  well  as  special  benefits  from  the  value  of  property  rights 
which  are  taken.     McCoy  v.  Union  Elevated  R.  R.  Co.  (1918)  247 
U.  S.  354- 

2  For  a  treatment  of  assessments  for  local  improvements  see  sec. 
280. 

3  For  a  consideration  of  due  process  and  administrative  action  see  sec. 
156. 

«  Hagar  v.  Reclamation  District  (1884)  in  U.  S.  701,  708.     See  sec. 

235- 

« United  States  v.  Jones  (1883)  109  U.  S.  513,  519;  Baltimore  Traction 
Co.  v.  Baltimore  Belt  R.  R.  Co.  (1894)  151  U.  S.  137. 


558       THE  AMERICAN  CONSTITUTION     §  265 

against  a  nonresident  owner, I  and  also  as  against  a  resident, 
owner  at  least  when  personal  service  cannot  be  made  with 
due  diligence. 2 

1  Ruling  v.  Kaw  Valley  Ry.  (1889)  130  U.  S.  559. 

2  Lewis,  Eminent  Domain  (yd  ed.)f  sec.  568,  and  cases  cited.    See  also 
sec.  245. 


CHAPTER  XXXII 

DUE  PROCESS  AND  THE  POLICE  POWER 

§266.     The  Relation  of  Police  Power  to  Due  Process. x    In 

examining  the  theory  upon  which  the  American  Union 
was  organized  we  have  seen  that  the  State  Legislatures  are 
held  to  possess  all  ordinary  legislative  powers,  as  measured 
by  the  powers  exercised  by  the  British  Parliament  at  the 
time  of  the  Revolution,  except  in  so  far  as  such  powers  are 
limited  by  the  Federal  Constitution,  and  by  the  constitu- 
tions of  the  individual  States. 2  At  the  time  that  the  Con- 
stitution was  adopted  the  people  of  the  United  States  were 
particularly  fearful  of  too  great  centralization  of  power  in 
the  federal  government.  This  is  apparent  from  the  whole 
tenor  of  the  Constitution,  but  is  more  particularly  evid- 
enced by  the  first  ten  amendments.  However,  after  the 
Civil  War,  which  had  been  the  direct  outcome  of  the 
extreme  states  rights  doctrine,  we  find  a  very  natural  swing 
of  the  pendulum,  evidenced  by  the  war  amendments,  which 
not  only  guarantied  freedom  to  the  colored  race,  but  put 
certain  direct  limitations  upon  state  action. 3  One  of  these 
limitations  is  that  a  State  may  not  "deprive  any  person  of 
life,  liberty,  or  property  without  due  process  of  law."  As 
we  have  seen  the  liberty  here  guarantied  is  not  only  personal 
liberty,  but  liberty  of  action,  including  liberty  to  contract; 
and  the  provision  against  taking  property  without  due 
process  not  only  limits  the  power  of  the  States  to  take  land 
and  chattels,  but  also  their  right  to  interfere  with  the  free 
use  of  property,  or  with  the  returns  which  may  be  realized 
from  its  use. 4  It  is  evident  that  the  extent  of  this  limitation 

1  With  regard  to  due  process  and  administrative  action  see  sec.  156. 
3  Sees.  chap.  19.  s  Sec.  116.  <  Sec.  234. 

559 


56o       THE  AMERICAN  CONSTITUTION     §  266 

will  entirely  depend  upon  the  interpretation  put  upon  the 
phrase  "due  process."  The  Supreme  Court  might  have 
interpreted  due  process  of  law  as  meaning  merely  in  due 
conformity  with  the  law,  as  it  was  urged  to  do.  So  inter- 
preted the  due  process  clause  would  have  constituted  no 
limitation  upon  legislative  action.  The  Supreme  Court 
without  hesitation  refused  to  adopt  this  interpretation. 
Although  the  court  has  refused  to  attempt  a  definition  of 
due  process,  it  has  declared  that  in  the  Fourteenth  Amend- 
ment 

"it  refers  to  that  law  of  the  land  in  each  State,  which 
derives  its  authority  from  the  inherent  and  reserved 
powers  of  the  State,  exerted  within  the  limits  of  those 
fundamental  principles  of  liberty  and  justice  which  lie  at 
the  base  of  all  our  civil  and  political  institutions,  and  the 
greatest  security  for  which  resides  in  the  right  of  the 
people  to  make  their  own  laws  and  alter  them  at  their 
pleasure."1 

The  so-called  "police  power  "  is  one  of  those  inherent  powers 
of  the  State  to  which  the  court  refers,2  and 'it  therefore, 
follows  that  legislation  passed  in  pursuance  of  that  power, 
and  which  is  not  clearly  in  conflict  with  ' '  those  fundamental 
principles  of  liberty  and  justice  which  lie  at  the  base  of  all 
our  civil  and  political  institutions  "  is  constitutional.  Bear- 
ing this  in  mind,  it  becomes  apparent  that  a  liberal  interpre- 
tation of  the  police  power  will  go  far  towards  modifying  the 
restriction  of  due  process  as  it  applies  to  legislative  action. 
The  police  power  is  the  most  general  and  least  defined  of  the 
inherent  powers  of  the  States  and  that  there  has  been  an 
increasingly  liberal  interpretation  put  upon  it  is  apparent 
from  a  study  of  the  decisions  of  the  last  decades.  This  does 
not  evidence  a  revival  of  sentiment  in  favor  of  State's  Rights, 

1  Hurtado  v.  California  (1884)  no  U.  S.  515,  535.  See  the  dis- 
cussion sec.  233. 

3  We  have  already  to  some  extent  considered  the  meaning  of  the  term 
"police  power"  in  connection  with  the  constitutional  provision  against 
the  impairment  of  the  obligation  of  contracts,  sees.  194  to  197. 


§§  267,  268       THE  POLICE  POWER  561 

for  the  fact  is  that  there  has  been  a  continual  extension  of 
federal  power  at  the  expense  of  the  States.  It  shows 
rather,  taken  together  with  the  increasing  regulatory  acti- 
vities of  the  federal  government,  a  gradual  replacement  of 
that  philosophy  of  individualism,  which  prevailed  during 
the  eighteenth  and  first  half  of  the  nineteenth  centuries,  by 
a  philosophy  of  collectivism,  evidencing  itself  in  a  govern- 
mental paternalism. 

§267.  Police  Power  and  Eminent  Domain  Distinguished. 
The  power  of  eminent  domain  may,  as  we  have  seen,  be 
exercised  for  a  "public  use " — that  is,  for  a  use  which  will  be 
beneficial  to  the  members  of  the  community — upon  the 
payment  of  just  compensation.1  On  the  other  hand,  the 
police  power  is  essentially  a  power  inhering  in  the  state 
governments  for  the  protection  of  the  community,  and 
carrying  with  it  no  duty  to  compensate  persons  who  are 
adversely  affected.  While  a  taking  of  property  under  the 
legitimate  exercise  of  the  police  power  is  due  process,  a  tak- 
ing to  be  a  legitimate  exercise  of  the  police  power  must  be 
reasonably  necessary  for  the  protection  of  the  community. 2 

§268.  Extent  of  Interference  with  Property  Rights  under 
the  Police  Power.  Generally,  the  protection  of  the  com- 
munity will  be  adequately  effected  by  the  regulation  of  the 
exercise  of  proprietary  rights,  without  the  actual  con- 
fiscation or  destruction  of  tangible  property.  However,  when 
the  confiscation  or  destruction  of  tangible  property  is  reason- 
ably necessary  for  the  protection  of  the  community,  the 
taking  is  a  legitimate  exercise  of  the  police  power  and  there 
is  due  process,  but  if  there  is  not  such  reasonable  necessity, 
the  taking  is  unconstitutional.  Property  which  is 
likely  to  cause  the  spread  of  disease,  as  well  as  animals, 
trees,  and  plants  having  contagious  diseases,  may  be  de- 
stroyed.3 Probably  it  is  also  justifiable  under  the  police 
power  to  authorize  the  destruction  of  buildings  to  prevent 

'Chap.  31. 

3  Northern  Pac.  Ry.  v.  North  Dakota  (1915)  236  U.  S.  585,  595. 
J  Philadelphia  v.  Scott  (1876)  80  Pa.  81,  85;  State  v.  Main  (1897)  69 
Conn.  123.    But  state  legislation  generally  provides  for  compensation. 
36 


562       THE  AMERICAN  CONSTITUTION     §  269 

the  spread  of  fire.1  Where  property  is  being  used  for  an 
illegal  purpose,  and  has  no  legitimate  use,  as  may  be  true 
of  gambling  devices,  it  may  be  destroyed  under  the  police 
power, 2  but  it  would  seem  unconstitutional  to  destroy  prop- 
erty under  the  police  power  simply  because  it  is  being  used 
for  an  illegal  purpose,  if  there  are  legitimate  purposes  to 
which  it  may  be  put.  The  community  will  be  adequately 
protected  by  restricting  its  use  to  purposes  which  are  legiti- 
mate. To  be  sure,  forfeiture  of  the  property  may  be  made 
part  of  the  punishment  for  the  illegal  use,  but  in  such  a  case 
due  process  would  require  notice  and  a  hearing.  The 
Supreme  Court  of  the  United  States  in  the  case  of  Lawton  v. 
Steele3  held  constitutional  a  state  statute  which  declared 
nets  used  for  unlawful  fishing  to  be  a  nuisance,  and  author- 
ized their  summary  seizure  and  destruction.  The  court 
laid  stress  upon  the  trifling  value  of  the  property  destroyed 
($i  5.00).  Three  justices  dissented,  and  it  is  submitted  that 
the  position  taken  by  them,  that  the  destruction  of  the 
property  in  question  was  not  a  proper  exercise  of  the  police 
power,  is  sounder  than  the  conclusion  reached  by  the 
majority. 4 

§269.  Police  Power  of  the  States  and  Interstate  Commerce. 
The  Constitution  expressly  commits  to  Congress  the  power 
"to  regulate  commerce  with  foreign  nations  and  among  the 
several  States,  and  with  the  Indian  tribes."5  As  a  result  of 
the  commerce  clause  "the  power  of  Congress  to  regulate 
commerce  among  the  several  States  is  supreme  and  plen- 
ary," but  not  wholly  exclusive  in  matters  with  regard  to 

1  Russell  v.  Mayor  (1845,  N.  Y.)  2  Denio  461 ;  American  Print  Works  v. 
Lawrence  (1847)  21  N.  J.  L.  248;  Surroco  v.  Geary  (1853)  3  Calif.  69. 
See  the  comment  on  these  cases  in  Freund,  Police  Power,  sees.  534  and 

535- 

3  See  cases  collected  and  commented  on  in  12  L.  R.  A.  (N.  5.)  394  n. 

3  (1894)  152  U.S.  133- 

*  For  a  collection  of  the  cases  dealing  with  property  used  in  violation 
of  the  game  laws  see  notes  in  3  L.  R.  A.  (N.  S.)  997,  and  L.  R.  A.  1916 
F.  913. 

s  Art.  I,  sec.  8,  par.  3.  See  the  consideration  of  interstate  commerce 
in  chap.  8. 


§  270  THE  POLICE  POWER  563 

which  Congress  has  not  yet  legislated.  The  States  may  not 
directly  regulate  interstate  commerce,  or  impose  direct 
burdens  upon  it,  but  on  the  other  hand  until  Congress  acts 
a  State  may  legislate  for  the  protection  of  the  interests  of 
persons  within  the  State,  though  such  regulation  indirectly 
affects  interstate  commerce.  * 

§270.  Police  Power  to  Protect  Health,  Safety,  Good  Order, 
and  Morals.  Legislation  is  most  clearly  within  the  scope  of 
the  police  power  which  has  for  its  object  the  protection  of 
the  health,  safety,  good  order  and  morals  of  the  community. 
An  almost  unlimited  number  of  examples  of  the  constitu- 
tional exercise  of  the  police  power  for  these  purposes  could 
be  collected,  but  only  a  comparatively  limited  number  of 
typical  cases  can  be  referred  to.2  In  the  interest  of  the 
health  of  the  community  the  State  may  regulate  the  practice 
of  medicine  and  the  training  of  practitioners3;  and  to  pre- 
vent the  spread  of  contagious  diseases  it  may  make  all 
reasonable  regulations,  including  so  drastic  a  requirement  as 
that  of  vaccination  against  smallpox.4  To  protect  the 
health  of  the  community  further,  burials  in  a  cemetery  in  a 
populous  district  may  be  prohibited, s  land  may  be  required 
to  be  drained,6  and  liveries7  and  brickyards8  may  be  for- 
bidden in  thickly  populated  parts  of  cities.  It  is  clearly 
legal,  also,  to  prohibit  the  sale  of  adulterated  food  and  drugs, 9 
or  milk  from  cows  which  have  not  been  tested  for 
tuberculosis. x  ° 

1  For  a  fuller  discussion  see  sec.  94. 

3  Although  legislation  as  to  hours  of  labor  and  a  living  wage  might  be 
considered  here,  they  will  be  taken  up  later  in  connection  with  legisla- 
tion regulating  employment,  sec.  274. 

s  Dent  v.  West  Virginia  (1889)  129  U.  S.  114. 

<  Jacobson  v.  Massachusetts  (1905)  197  U.  S.  n. 

s  Laurel  Hill  Cemetery  v.  San  Francisco  (1910)  216  U.  S.  358. 

6  New  Orleans  Gas  Light  Co.  v.  Drainage  Commission  (1905)  197  U.  S. 

453- 

?  Reinrnan  v.  Little  Rock  (1915)  237  U.  S.  171. 
8  Hadecheck  v.  Sebastian  (1915)  239  U.  S.  394. 
»  Grossman  v.  Lurman  (1904)  192  U.  S.  189. 
10  Adams  v.  Milwaukee  (1913)  228  U.  S.  572. 


564       THE  AMERICAN  CONSTITUTION    §  270 

For  the  safety  of  the  community  a  State  may  regulate 
the  use  of  property  to  prevent  the  risk  of  fire. l  It  may  also 
regulate  the  carrying  and  use  of  firearms,  and  the  speed  of 
vehicles  on  highways.2  Railroads  may  be  compelled 
to  fence  their  property3  and  to  employ  proper  safety  devices 
at  their  crossings. 4  A  duty  may  be  imposed  upon  mine 
owners  to  leave  sufficient  thickness  of  rock  between  adjoin- 
ing mines  to  be  a  protection  to  each  mine  in  case  of  the 
flooding  of  the  other. s  It  is  even  competent  for  a  State  in 
the  interest  of  public  safety  to  put  an  absolute  liability  upon 
a  person  without  any  corresponding  fault  on  his  part.  So 
statutes  have  been  held  constitutional  which  make  railroads 
absolutely  liable  for  fires  caused  by  their  locomotives,6  or 
which  make  the  driver  of  animals  absolutely  liable  for  injur- 
ies caused  by  such  animals  to  highways, 7  or  which  put  upon 
a  municipality  absolute  liability  for  injury  to  property 
caused  by  a  mob.8 

The  right  to  protect  the  safety  of  the  community  shades 
off  into  the  right  to  maintain  public  order.  Here  we  find 
ample  justification  for  the  vagrancy  legislation  of  our  var- 
ious States9  and  for  the  statutes  prohibiting  and  punishing 
public  drunkenness  and  disorderly  conduct. *  °  In  several  of 
the  southern  States  there  has  been  rather  persistent  effort 
to  segregate  the  white  and  colored  residents  of  the  larger 
cities  within  separate  areas.  A  very  carefully  framed 
ordinance  of  the  city  of  Louisville,  which  was  declared  to  be 
adopted  "to  prevent  conflict  and  ill-feeling  between  the 
white  and  colored  races,  ...  to  preserve  the  public  peace 

1  Patterson  v.  Kentucky  (1878)  97  U.  S.  501 ;  Barbier  Connelly  (1885) 
H-3U.  S.  27. 

2 II  Corpus  Juris,  917,  and  cases  cited. 

3  Missouri  Pac.  Ry.  Co.  v.  Humes  (1885)  115  U.  S.  512. 

<  Chicago  B.  &  Q.  R.  R.  Co.  t>.  Chicago  (1897)  166  U.  S.  226,  252. 

s  Plymouth  Coal  Co.  v.  Pennsylvania  (1914)  232  U.  S.  531. 

6  St.  Louis  &  S.  F.  R.  R.  Co.  v.  Matthews  (1897)  165  U.  S.  i. 

'Jones  v.  Brim  (1897)  165  U.  S.  180. 

8  Chicago  v.  Sturges  (1911)  222  U.  S.  313. 

'  Freund,  Police  Power,  sees.  97  to  100. 

10  Corpus  Juris,  918. 


§  270  THE  POLICE  POWER  565 

and  promote  the  general  welfare,"  provided  inter  alia  that 
it  should  be 

"unlawful  for  any  colored  person  to  move  into  and 
occupy  as  a  residence,  place  of  abode,  or  to  establish  and 
maintain  as  a  place  of  public  assembly  any  house  upon 
any  block  upon  which  a  greater  number  of  houses  are 
occupied  as  residences,  places  of  abode,  or  places  of 
assembly  by  white  people  than  are  occupied  as  residences, 
places  of  abode,  or  places  of  assembly  by  colored  people." 

White  persons  were  in  like  manner  forbidden  to  move  into 
colored  blocks,  and  all  interests  were  protected  which  were 
vested  at  the  time  of  the  adoption  of  the  ordinance.  The 
Supreme  Court  of  the  United  States  held  the  ordinance 
unconstitutional,  as  in  conflict  with  the  due  process  clause, 
and  evinced  a  clear  determination  to  hold  void  any  law 
whose  operation  amounts  to  a  limitation  upon  the  use  of  and 
right  to  dispose  of  property,  and  whose  sole  basis  is  that  of 
race  difference.1  It  is  interesting  to  note  that  legislative1 
separation  of  the  white  and  colored  races  in  the  vehicles  of 
common  carriers,2  and  in  schools3  has  been  held  consti- 
tutional. Thus  it  would  seem  that  segregation  to  prevent 
race  friction  may  be  constitutional  though  it  somewhat 
infringes  upon  the  personal  liberty  of  the  individual,  but 
that  it  is  not  constitutional  when  it  also  interferes  with 
property  rights. 

The  restraints,  with  which  we  are  all  familiar, 
which  are  placed  by  the  State  upon  those  who  are 
mentally  defective,  and  upon  minors,  are  imposed  to  some 
extent  in  the  interest  of  good  order,  and  to  some  extent  in 
the  interest  of  public  safety  to  prevent  crime,  but  are 
largely  justified  for  the  protection  of  those  classes  which  are 

1  Buchanan  v.  Warley  (1917)  245  U.  S.  60. 

3  Louisville  etc.,  R.  Co.  v.  Mississippi  (1890)  133  U.  S.  587;  Plessy  v. 
Ferguson  (1896)  163  U.  S.  537;  Chesapeake  &  O.  R.  Co.  v.  Kentucky 
(1900)  179  U.  S.  388. 

3  Bertonneau  v.  Board  of  Directors  (1878)  Fed.  Cas.  No.  1,361 ;  People 
v.  Gallagher  (1883)  93  N.  Y.  438. 


566       THE  AMERICAN  CONSTITUTION     §  270 

directly  affected,  whose  members  are  not  able  unaided  to 
fully  care  for  themselves.  x 

Again  we  find  that  the  rights  to  maintain  public  order, 
and  to  conserve  the  health  of  the  community  shade  off  into 
the  right  to  protect  the  public  morals,  but  legislation  which 
is  generally  put  under  the  latter  head  deals  with  gambling, 
intoxication,  and  sexual  irregularities  and  obscenity.  Gam- 
bling was  not  an  offense  at  common  law, 2  but  it  has  been 
very  extensively  legislated  against  both  in  England  and  in 
this  country. 3  Such  legislation  is  within  the  police  power.4 
So  it  has  been  determined  that  lotteries  may  be  entirely  sup- 
pressed,5 and  that,  if  it  reasonably  appears  necessary  to 
forbid  all  option  contracts  in  grain  in  order  to  suppress 
gambling  contracts  in  that  commodity,  this  may  be  done.6 
Although  the  Kentucky  Court  of  Appeals  has  declared  that 
"the  right  to  use  liquor  for  one's  own  comfort"  is  an  "in- 
alienable right,"7  the  Supreme  Court  of  the  United  States 
has  taken  quite  another  view,  and  has  upheld  the  most 
drastic  of  dry  laws.  Not  only  may  the  manufacture  for 
sale  and  the  sale  of  intoxicants  be  prohibited,  but  the  State 
may  prohibit  their  private  manufacture  within  its  borders 
for  the  maker's  own  use, 8  or  even  their  use  or  mere  posses- 
sion. 9  Moreover  an  Illinois  statute  was  upheld I  °  which  made 
a  judgment  against  a  liquor  dealer  for  loss  to  dependents  of 
his  customers,  as  a  result  of  sales  made  by  him,  a  lien  upon 
the  premises  where  the  goods  were  sold,  provided  the  owner 
knew  of  the  use  to  which  the  premises  were  being  put. 
However,  the  subject  is  now  comprehensively  dealt  with  by 

1  A  full  consideration  of  the  various  provisions  on  this  subject  will  be 
found  in  Freund,  Police  Power,  sees.  252  to  271. 

2  Jenks  v.  Turpin  (1884)  L.  R.  13  Q.  B.  D.  505. 

3  15  Laws  of  England,  284;  12  K.  C.  L.  708. 

4  Marvin  v.  Trout  (1905)  199  U.  S.  212. 

s  Stone  v.  Mississippi  (1879)  IO1  U.  S.  814. 

6  Booth  v.  Illinois  (1902)  184  U.  S.  425. 

7  Commonwealth  v.  Campbell  (1909)  133  Ky.  50,  63. 

8  Mugler  v.  Kansas  (1887)  123  U.  S.  623. 
'Crane  v.  Campbell  (1917)  245  U.  S.  304. 
"  Eiger  v.  Ga  rity  (1918)  246  U.  S.  88. 


§  271  THE  POLICE  POWER  567 

a  super-police  regulation  in  the  form  of  the  Eighteenth 
Amendment  to  the  Federal  Constitution.1  A  State  has 
complete  authority  to  deal  with  the  subject  of  the  marriage 
and  divorce  of  its  residents,  except  insofar  as  it  is  compelled 
to  give  full  faith  and  credit  to  the  divorce  decree  of  other 
States.2  Places  of  ill-fame  may  be  completely  suppressed 
under  the  police  power, 3  and  it  seems  that  prostitutes  may 
also  be  segregated  within  a  designated  area.4  Provisions 
against  indecent  exposure,  obscene  language,  and  obscene 
publications  are  very  generally  found  on  the  statute  books 
of  our  States, s  and  their  constitutionality  is  unquestioned. 
§271.  Police  Power  May  Not  Be  Exercised  Purely  for 
JEsthetic  Purposes.  Since  the  police  power  is  essentially  a 
power  for  the  protection  of  the  public  its  exercise  is,  natur- 
ally, not  justified  for  purely  aesthetic  purposes.6  The 
prohibition  of  billboards  of  certain  size  and  character,  or 
within  certain  areas  has  been  upheld  by  the  Supreme  Court 
when  it  appeared  that  the  prohibited  billboards  might 
provide  a  place  where  criminals  could  hide,  where  refuse 
would  accumulate,  and  where  immoral  practices  might  be 
carried  on. 7  When  these  facts  are  shown,  the  fact  that  the 
legislature  may  have  also  been  to  some  extent  moved  by 
aesthetic  considerations  will  not  invalidate  the  legislation. 8 
It  is  also  probably  true  that  anti-smoke  legislation,  which 

1  See  sec.  285.     It  was  not  competent  before  the  amendment  for 
States  to  forbid  the  importation  of  liquor,  or  its  sale  in  the  original 
package,  since  this  would  be  an  interference  with  interstate  commerce, 
Leisy  v.  Hardin  (1890)   135  U.  S.  100,  but  Congress  might  forbid  its 
transportation  in  interstate  commerce,  or  could,  as  it  did,  permit  the 
States   to  prohibit  its  introduction   within    their    borders.       Clarke 
Distilling  Co.  v.   Western  Maryland  Ry.  Co.  (1917)  242  U.  S.  311. 
See  sees.  91  and  92. 

2  Sec.  203. 

3  Commonwealth  v.  Goodall  (1896)  165  Mass.  588;  Hudson  v.  Jenn- 
ings (1910)  134  Ga.  373;  Hatcherv.  Dallas  (1911,  Tex.)  133  S.  W.  914. 

<  L'Hote  v.  New  Orleans  (1900)  177  U.  S.  587. 

s  29  Cyc.  1314  et  seq. 

6  See  note  and  cases  in  3  Cornell  L.  Quar.,  135. 

i  Thomas  Cusack  Co.  v.  Chicago  (1917)  242  U.  S.  526. 

8  St.  Louis  Poster  Advertising  Co.  v.  St.  Louis  (1919)  249  U.  S.  269. 


568        THE  AMERICAN  CONSTITUTION    §  272 

has  as  its  constitutional  justification  the  protection  of 
health,  may  also  have  its  origin  to  some  extent  in  a  desire  to 
make  the  locality  more  attractive. I 

§272.  Regulation  of  Rates  and  Service.  Common  carriers 
and  innkeepers,  as  survivors  of  the  ancient  common  callings, 
are  under  a  duty  to  serve  the  public  reasonably  within 
the  scope  of  their  business.2  A  similar  duty  is  by  the 
common  law  put  upon  those  who  are  the  recipients  of  the 
franchises  of  eminent  domain  or  of  the  use  of  streets  or  high- 
ways. 3  It  is  quite  clear  that  reasonable  rates  and  practices 
may  be  established  for  these  businesses  by  legislation,  for 
this  is  but  defining  existing  duties  for  the  protection  of  the 
public.4  However,  the  Supreme  Court  has  gone  further, 
and  has  held  that  a  state  legislature  may  under  the  police 
power  impose  a  duty  to  serve  at  reasonable  rates  upon 
businesses  not  previously  under  that  duty.  In  Munn  v. 
Illinois5  and  Budd  v.  New  York6  it  was  held  with  regard  to 
grain  elevators,  that  the  use  of  and  profits  from  property 
could  be  regulated  when  the  business  is  of  great  importance 
to  the  public  and  monopolistic  in  tendency,  so  that  the  pub- 
lic are  in  danger  of  oppression.  In  the  first  case  two,  and 
in  the  second  case  three  justices  dissented  on  the  ground 
that  such  regulation  not  being  for  the  protection  of  health, 

1  Northwestern  Laundry  v.  Des  Moines  (1916)  239  U.  S.  486. 

a  Jackson  v.  Rogers  (1683)  2  Show.  327;  Gisbourne  v.  Hurst  (1710)  i 
Salk.  249;  Rex  v.  Ivens  (1835)  7  C.  &  P.  213;  Moore,  Carriers,  sec.  2; 
Beale,  Innkeepers  and  Hotels,  sees.  51  et  seq.  See  C.  K.  Burdick, 
"The  Origin  of  the  Peculiar  Duties  of  Public  Service  Companies," 
ii  Col.  L.  Rev.,  5H-53I. 

s  Haugen  v.  Albina  L.  &  P.  Co.  (1891)  21  Ore.  41 1 ;  State  ex  rel.  Wood 
v.  Consumers'  Gas  Co.  (1901)  157  Ind.  345,  351 ;  Jones  v.  Horth  Georgia 
El.  Co.  (1906)  125  Ga.  618.  See  C.  K.  Burdick,  "The  Origin  of  the 
Peculiar  Duties  of  Public  Service  Companies,"  n  Col.  L.  Rev.,  616- 
638. 

4  Beale,  Innkeepers  and  Hotels,  sec.  242;  Hutchinson,  Cartiers,  sec. 
574;  Joyce,  Electric  Law,  sec.  14;  gas,  20  Cyc.  1166,  water,  40  Cyc.  796. 

s  (1876)  94  U.  S.  113. 

6  (1891)  143  U.  S.  517.  See  particularly  the  excellent  opinion  of  An- 
drews, J.,  in  this  case  in  the  New  York  Court  of  Appeals  sub  nom. 
People  ».  Budd  (1889)  117  N.  Y.  i. 


§  272  THE  POLICE  POWER  569 

safety  or  morals  could  only  be  imposed  upon  businesses 
exercising  a  public  use,  as  distinguished  from  those  exercising 
a  use  in  which  the  public  has  an  interest,  that  is,  that  a  busi- 
ness could  only  be  so  regulated  which  a  state  might  carry  on, 
or  which  was  invested  with  powers  reserved  to  the  state 
such  as  eminent  domain.  In  Brass  v.  North  Dakota x  mono- 
polistic conditions  were  declared  not  to  constitute  a  necessary 
basis  of  such  police  regulations ;  it  is  enough  if  the  business 
in  question  is  of  great  public  importance.  In  this  case  four 
justices  dissented  on  the  ground  that  where  no  monopolistic 
tendency  is  shown  the  doctrine  of  the  preceding  cases  did 
not  apply,  and  the  need  of  the  public  for  protection  was  not 
apparent.  Although  the  strong  dissent  in  the  Brass  case 
left  somewhat  in  doubt  for  a  time  the  very  broad  doctrine 
of  the  majority,  this  doubt  seems  to  have  been  set  at  rest 
by  the  case  of  German  Alliance  Insurance  Company  v.  Kan- 
sas2 in  which  the  doctrine  of  the  Brass  case  was  expressly 
approved  and  applied  to  the  insurance  business.  These 
same  principles  were  held  by  the  New  York  Court  of  Appeal 
and  the  Supreme  Court  of  the  United  States  to  apply  to 
rented  property,  and  to  justify  the  New  York  legislature, 
during  the  building  shortage  after  the  Great  War,  in  restrict- 
ing landlords  in  New  York  City  to  the  receipts  of  a  reason- 
able rental,  irrespective  of  the  rent  agreed  upon. 3  Though 
it  is  declared  to  be  "fundamental  that  private  business  may 
not  be  regulated,  and  may  not  be  converted  into  public 
business  by  legislative  fiat,"4  we  certainly  have  a  very 
liberal  view  taken  of  what  makes  a  business  public  in  char- 

1  (1894)  153  U.  S.  391. 

3  (1914)  233  U.  S.  389.  Mr.  Justice  Lamar  wrote  a  dissenting  opinion, 
concurred  in  by  Mr.  Chief  Justice  White  and  Mr.  Justice  Van  Devanter, 
in  which  he  asserted  that  the  result  of  the  decision  of  the  majority  is  that 
"the  price  of  every  article  sold  and  the  price  of  every  service  offered  can 
be  regulated  by  statute." 

3  People  ex  rel.  Durham  Realty  Co.  v.  LaFetra  (1921)  230  N.  Y.  429; 
Marcus  Brown  Holding  Co.  v.  Feldman  (1921)  41  Sup.  Ct.  Rep.  465. 

<  People  ex  rel.  Durham  Realty  Co.  v.  La  Fetra  (1921)  230  N.  Y.  429, 
442;  Producers'  etc.  Co.  v.  Railroad  Comm.  (1920)  251  U.  S.  228, 
230. 


570       THE  AMERICAN  CONSTITUTION     §  272 

acter,  and  we  have  the  police  power  put  in  these  cases  upon 
a  very  broad  foundation.  * 

In  the  first  rate  cases  the  Supreme  Court  held  that  the 
rates  fixed  by  a  State  Legislature  were  conclusive  and  not 
reviewable. 2  Shortly,  however,  the  court  began  to 
doubt  this  proposition,3  and  finally  abandoned  it  entirely 
because  it  discerned  that  a  taking  of  property  under  the 
guise  of  the  police  power,  which  is  not  reasonably  justified  for 
the  protection  of  the  public  is  not  in  fact  an  exercise  of  the 
police  power  at  all,  but  is  an  arbitrary  taking  of  property, 
and  so  is  a  taking  without  due  process. 4  The  public  is  fully 
protected  if  the  business  which  is  regulated  is  confined  to  the 
receipt  of  reasonable  rates,  and  reasonable  rates  are  to  be 
measured  by  operating  expenses  plus  a  fair  return  upon 

1  It  has  been  contended  that  Munn  v.  Illinois,  discussed  above,  is 
authority  for  the  proposition  that  a  business  which  is  important  to  the 
public  and  monopolistic  is  under  a  common  law  duty  to  serve  all.  Inter- 
Ocean  Publishing  Co.  v.  Associated  Press  (1900)  184  111.  438;  State  v. 
Nebraska  Tel.  Co.  (1885)  17  Neb.  126;  dictum  of  Mr.  Justice  Miller  in 
Wabash  etc.  Ry.  Co.  v.  Illinois  (1886)  118  U.  S.  557,  569.  But  see  con- 
tra, Ladd  v.  Southern  Cotton  Press  Co.  (1880)  53  Tex.  172;  Delaware 
L.  &  W.  R.  R.  v.  Central  S.  Y.  &  T.  Co.  (1889)  45  N.  J.  Eq.  50;  State 
ex  rel.  v.  Associated  Press  (1900)  159  Mo.  410;  Live  Stock  Comm.  Co.  v. 
Live  Stock  Exch.  (1892)  143  111.  210.  Although  there  is  some  language 
in  the  rather  loosely  expressed  opinion  in  the  Munn  case  which  would 
support  the  view  first  stated,  the  Budd  case,  the  Brass  case,  and  the 
German  Insurance  Co.  case  do  not  go  at  all  on  that  ground.  In  fact  in 
the  latter  case  the  insurance  company  contended  that  where  the  right  to 
demand  service  did  not  exist  there  was  no  legislative  right  to  fix  rates, 
but  the  court  said  that  this  proposition  had  no  support  in  the  law,  citing 
as  upholding  its  position,  the  Munn,  Budd,  and  Brass  cases.  This  would 
seem  to  show  clearly  that  the  interpretation  which  the  Supreme  Court 
now  puts  upon  the  Munn  case  is  that  it  upholds  the  imposition  of  a  new 
duty  and  not  the  regulation  of  one  existing  under  the  common  law. 
See  C.  K.  Burdick,  "The  Peculiar  Duties  of  Public  Service  Compa- 
nies," ii  Col.  L.  Rev.,  743-764. 

3  Munn  v.  Illinois  (1876)  94  U.  S.  113;  Peik  v.  Chicago  &  N.  W.  Ry. 
Co.  (1876)  94 U.S.  164. 

3  Stone  v.  Farmers'  L.  &  T.  Co.  (1885)  1 16  U.  S.  307,  330. 

4  In  Reagan  v.  Farmers'  L.  &  T.  Co.  (1894)  154  U.  S.  362,  the  right  of 
judicial  review  was  put  upon  the  ground  that  a  discrimination  between 
the  rates  of  those  who  are  regulated  and  those  who  are  not,  which  regula- 


§  272  THE  POLICE  POWER  571 

"the  fair  value  of  the  property  being  used  by  it  for  the 
convenience  of  the  public."1 

In  the  case  just  cited  the  court  goes  on  to  say, 

"And,  in  order  to  ascertain  that  value,  the  original 
cost  of  construction,  the  amount  expended  in  permanent 
improvements,  the  amount  and  market  value  of  its  bonds 
and  stock,  the  present  as  compared  with  the  original  cost 
of  construction,  the  probable  earning  capacity  of  the 
property  under  particular  rates  prescribed  by  statute, 
and  the  sum  required  to  meet  operating  expenses,  are  all 
matters  for  consideration,  and  are  to  be  given  such  weight 
as  may  be  just  and  right  in  each  case."2 

Clearly,  however,  the  value  of  stocks  and  bonds  has  very 
little  evidentiary  significance  in  a  rate  case,  since  their 
market  value  is  itself  very  largely  determined  by  the 
existing  rates,  and  such  value  is  given  little  if  any  consider- 
ation. This  really  leaves  the  choice  between  original 
investment  and  reproduction  cost.  It  may  fairly  be 
argued  in  many  cases  that  it  is  both  equitable  and  wise  to 

tion  is  not  required  for  the  reasonable  protection  of  the  public,  is  a  denial 
of  equal  protection.  (For  a  discussion  of  the  equal  protection  clause  of 
the  Fourteenth  Amendment  see  chap.  33.)  However,  in  Smyth  v. 
Ames  (1898)  169  U.  S.  466,  which  has  become  the  leading  case  on  the 
subject,  the  right  of  judicial  review  was  put  rather  on  the  "due  process" 
clause.  See,  as  typical  of  a  large  number  of  cases,  Chicago,  &  St.  P.  Ry. 
Co.  v.  Tompkins  (1900)  176  U.  S.  167;  Northern  Pac.  Ry.  Co.  v.  North 
Dakota  (1915)  236  U.  S.  585. 

1  Smyth  v .  Ames  (1898)  169  U.  S.  466.  In  this  case  it  was  also  decided 
that  a  State  in  fixing  intrastate  rates  must  allow  a  fair  return  upon  the 
property  used  in  intrastate  business,  and  may  not  take  into  account  the 
returns  from  interstate  business. 

When  a  legislative  schedule  of  rates  as  a  whole  is  attacked,  it  is  suffi- 
cient to  show  that  the  return  as  a  whole  is  reasonably  remunerative,  but 
when  service  is  classified  and  different  rates  established  for  different 
services  it  is  not  sufficient  to  show  that  the  whole  schedule  is  re- 
munerative, if  the  rate  for  a  particular  class  is  unreasonably  low.  In 
such  a  case  the  unreasonably  low  rate  is  unconstitutional,  since  it  goes 
beyond  the  legitimate  scope  of  the  police  power.  Northern  Pacific  Ry. 
Co.  v.  North  Dakota  (1915)  236  U.  S.  585. 
3  Smyth  v.  Ames  (1898)  169  U.  S.  466,  546. 


572       THE  AMERICAN  CONSTITUTION    §  272 

allow  a  fair  return  upon  the  investment,  but  that  is  not 
what  the  Constitution  guaranties.  It  declares  that  a 
person's  property  shall  not  be  taken  without  due  process, 
and  as  we  have  seen  above  the  Supreme  Court  has  declared 
that  this  means  that  one  whose  rates  are  regulated  is 
entitled  to  a  return  upon  "the  fair  value  of  the  property 
being  used1  by  it"  for  the  public.  Original  investment  is 
clearly  not  conclusive  of  present  value,  and  its  evidentiary 
value  on  that  point  will  depend  very  largely  upon  the  lapse 
of  time  since  the  investment  was  made. 2  Cost  of  reproduc- 
tion, less  depreciation,  has  been  increasingly  used  as  the 
most  important  evidence  of  present  value  of  a  plant. 3  This 
gives  to  the  owner  the  advantage  of  appreciation  in  value, 
while  visiting  him  with  the  loss  due  to  depreciation.  The 
term  "reproduction  cost"  has,  however,  no  appropriate 
application  to  the  value  of  rights  of  way,  or  other  realty. 
The  value  of  realty  should  be  measured  by  the  market  value 
of  adjoining  land.4  In  fact  this  is  nothing  more  than 
applying  to  land  the  normal  practice  of  determining  the 
reproduction  cost  of  a  plant  in  terms  of  present  cost  of 
material  and  labor. s  Franchise  value,  as  used  in  taxation 
cases,  should  not  be  allowed  in  fixing  rates,  except  as  it 
represents  the  actual  cost  of  franchises,6  since  it  is  arrived 
at  by  capitalizing  returns,  and  deducting  the  value  of  tangi- 
ble property,  and  is  therefore  dependent  upon  existing  rates. 
If  such  value  were  used  no  reduction  in  rates  would  be 
possible.  Ordinarily  the  element  of  "good  will"  does  not 
attach  to  a  public  utility,  in  the  sense  in  which  the  term  is 

1  Italics  are  those  of  the  present  writer. 

3  For  arguments  in  favor  of  basing  rates  upon  investment  see  Whitten, 
Valuation  of  Public  Service  Corporations,  chap.  5. 

3  Knoxville  v.  Knoxville  Water  Co.  (1909)  212  U.  S.  i;  Louisville  & 
N.  R.  R.  Co.  v.  Railroad  Comm.  of  Ala.  (1912)  196  Fed.  800;  Minnesota 
Rate  Cases  (1913)  230  U.  S.  352,  456. 

4  Minnesota  Rate  Cases  (1913)  230  U.  S.  352,  450. 

s  Louisville  &  N.  R.  R.  Co.  v.  Railroad  Comm.  of  Ala.  (1912)  196  Fed. 
800. 

6  Whitten,  Valuation  of  Public  Service  Corporations,  chap.  27,  and 
cases  there  collected. 


§  272  THE  POLICE  POWER  573 

used  in  competitive  business, l  and  if  it  did,  since  its  value 
is  measured  by  present  returns,  its  use  in  rate  cases  would 
tend  to  destroy  the  right  to  regulate  rates.  ' '  Going  concern 
value,"  however,  is  generally  allowed,  though  there  is  differ- 
ence of  opinion  as  to  how  it  should  be  dealt  with.  The 
federal  courts  seem  to  hold  that  some  sum  should  be  added 
to  the  aggregate  of  the  value  of  the  various  elements  of  the 
plant  to  represent  the  value  of  the  plant  as  in  successful 
operation,  but  no  manner  of  measuring  this  sum  is  sug- 
gested. 2  A  good  many  courts  take  going  value  to  mean  the 
cost  of  building  up  a  profitable  business,  which  is  measured 
by  the  deficits  during  the  period  of  development.  But 
these  courts  differ  as  to  whether  such  deficits  are  to  be 
capitalized,  and  a  return  earned  upon  them,  or  whether  they 
are  to  be  paid  back  out  of  current  rates.3  Other  items 
which  are  frequently  allowed  are  promotion  and  organi- 
zation, engineering  and  superintendence  during  construction, 
and  interest  on  capital  lost  during  the  same  period. 4 

Operating  expenses  must  be  deducted  from  gross  earnings 
before  the  return  on  capital  can  be  figured, 5  but  operating 
expenses  are  open  to  scrutiny,  and  only  those  that  are 
reasonable  may  be  taken  into  consideration.6  Operating 
expenses  obviously  include  reasonable  salaries,  wages,  taxes, 
and  supplies.  *  Annual  repairs  should  clearly  be  included  in 
operating  expenses,  as  should  an  item  for  annual  depreci- 
ation in  order  to  keep  the  capital  intact.8  Betterments, 

1  Consolidated  Gas  Co.  v.  City  of  New  York  (1907)  157  Fed.  849,  871, 
and  on  appeal  sub  nom.  Willcox  v.  Consolidated  Gas  Co.  (1909)  212  U.  S. 

19,  52. 

2  Knoxville  v.  Knoxville  Water  Co.  (1909)  212  U.  S.  1,9;  Cedar  Rapids 
Gas  Co.  v.  Cedar  Rapids  (1912)  223  U.  S.  655. 

3  Whitten,   Valuation  of  Public  Service  Corporations,   chaps.    22   to 
25,  and  cases  there  discussed.  4  Ibid.,  chap.  12 

s  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Tompkins  (1900)  176  U.  S.  167. 

6  Chicago  &  G.  T.  Ry.  Co.  v.  Wellman  (1892)  143  U.  S.  339. 

'  Reeder,  Validity  of  Rate  Regulations,  sec.  172. 

8  Knoxville  v.  Knoxville  Water  Co.  (1909)  212  U.  S.  i.  But  it  is  also 
made  clear  in  this  case  that  depreciation  not  provided  for  in  the  year 
in  which  it  took  place  cannot  be  charged  up  to  operating  expenses  of  a 
later  year. 


574       THE  AMERICAN  CONSTITUTION    §  273 

which  increase  the  value  of  the  plant  or  system,  should 
properly,  however,  be  paid  for  out  of  net  earnings  or  new 
capital. x 

State  legislatures  may  also  in  the  interest  of  public 
welfare  regulate  the  methods  of  rendering  service  on  the 
part  of  businesses  which  because  of  their  importance,  come 
within  the  purview  of  the  police  power.  So  a  State  may 
make  regulations  for  such  businesses  to  prevent  discrimi- 
nation between  patrons, 2  or  to  compel  the  provision  of  ade- 
quate facilities,3  or  to  give  the  patron  a  more  adequate 
remedy  for  loss  or  injury. 4 

§273.  Protecting  the  Public  against  Fraud,  Oppression, 
Loss  and  Waste.  The  common  law,  except  where  property 
was  obtained  by  false  tokens  or  letters,5  left  a  party  who 
had  been  defrauded  by  another  to  his  remedy  for  damages 
for  deceit.  As  was  said  by  the  Court  of  King's  Bench, 
4 '  we  are  not  to  indict  one  man  for  making  a  fool  of  another. 
Let  him  bring  his  action."6  Since  the  day  when  that 
sentiment  was  expressed  there  has  been  a  radical  change  in 
the  conception  of  the  state's  duty  towards  its  citizens.  In 
England  and  in  this  country  statutes  have  been  passed 

1  Illinois  Cent.  R.  R.  Co.  v.  Interstate  Com.  Comm.  (1907)  206  U.  S. 
441;  Coal  &  C.  Ry.  Co.  v.  Conley  (1910)  67  W.  Va.  129;  Erie  v.  Erie 
G.  &  M.  Co.  (1908)  78  Kan.  348,  354.  But  this  distinction  between 
depreciation  and  betterment  is  not  always  kept  in  mind.  Southern  P. 
Co.  v.  Board  of  R.  R.  Comrs.  (1896)  78  Fed.  236. 

3  Wadley  S.R.  Co.  v.  Georgia  (1915)  235  U.  S.  651,  upholding  a  statute 
forbidding  discrimination  by  requiring  prepayment  of  freight  by  some 
and  not  by  other  patrons. 

3  Minneapolis  &  St.  L.  R.  R.  Co.  v.  Minnesota  (1904)  193  U.  S.  53, 
upholding  a  statute  requiring  the  building  of  stations  where  needed  to 
give  reasonably  adequate  service. 

4  Atlantic  C.  L.  R.  Co.  v.  Glenn  (1915)  239  U.  S.  388,  holding  con- 
stitutional a  statute  making  all  carriers  joining  in  intrastate  shipments 
agents  of  each  other,  and  giving  the  patron  the  right  to  sue  anyone  of 
them  for  any  loss,  without  reference  to  where  it  occurred. 

«  At  the  early  law  it  had  to  be  by  public  tokens.  By  33  Hen.  VIII, 
c.  i,  it  was  made  a  criminal  offense  to  obtain  property  by  false  private 
tokens  or  letters. 

6Regina  v.  Jones  (1703)  I  Salk.  379. 


§  273  TH        OLICE  POWER  575 

making  it  a  criminal  offense  to  obtain  property  from  another 
by  any  form  of  false  pretense. x  But  under  the  police  power 
the  States  have  gone  much  further  than  this,  and  have  been 
repeatedly  upheld  in  legislation  interfering  with  proprietary 
rights,  and  with  liberty  of  action,  when  the  purpose  of  such 
legislation  has  fairly  been  to  protect  the  public  from  the 
danger  of  fraud  or  deception.  In  Lemieux  v.  Young2  the 
Supreme  Court  sustained  a  statute  prohibiting  the  sale  or 
assignment,  not  in  the  ordinary  course  of  business,  of  all 
of  a  retailer's  stock  in  trade,  without  giving  certain  notice 
specified  in  the  act.  This  is  what  is  known  as  a  ''sales  in 
bulk  law,"  and  the  court  held  it  to  be  reasonably  designed 
to  prevent  fraud  on  creditors.  In  1916  the  Supreme  Court 
settled  a  controversy  which  had  been  going  on  in  the  lower 
courts  as  to  whether  a  State  could  prohibit  the  use  of  trading 
stamps.  In  the  cases  which  came  before  the  court  the 
legislation  involved  had  put  a  prohibitive  license  fee  upon 
the  use  of  trading  stamps,  and  the  court  held  this  con- 
stitutional, since  a  State  could  entirely  prohibit  the  use  of 
such  stamps.  The  court's  decision  was  not  put  upon  the 
ground  that  such  devises  actually  tend  to  defraud  pur- 
chasers, but  the  court  declared  that  ' '  by  an  appeal  to  cu- 
pidity"  they  "lure  to  improvidence,"  and  that  the  State  is 
justified  in  protecting  its  citizens  against  such  seduction.3 
In  1917  "Blue  Sky  "  laws  of  three  States  were  upheld  by  the 
Supreme  Court. 4  It  was  declared  that  in  requiring  dealers 
in  securities  to  obtain  licenses,  and  in  giving  to  an  adminis- 
trative officer  the  authority  to  revoke  licenses  on  certain 
grounds  named,  the  statutes  were  within  the  police  power 
to  protect  the  public  from  fraud.  The  same  reason  was 
held  to  justify  a  statute  providing  that  farm  produce  should 

1  3  Stephen,  History  of  the  Criminal  Law  of  England,  160  et  seq.; 
Wharton,  Criminal  Law  (i  ith  ed.),  sees.  1393  et  seq. 

3  (1909)  211  U.  S.  489. 

3Rast  v.  Van  Deman  &  Lewis  Co.  (1916)  240  U.  S.  342;  Tanner  v. 
Little  (1916)  240  U.  S.  369;  Pitney  v.  Washington  (1916)  240  U.  S.  387. 

"Hall  v.  Geiger-Jones  Co.  (1917)  242  U.  S.  539;  Caldwell  v.  Sioux 
Falls  Stock  Yard  Co.  (1917)  242  U.  S.  559;  Merrick  v.  Halsey  (1917)  242 
U.  S.  568. 


576       THE  AMERICAN  CONSTITUTION     §  273 

only  be  sold  under  license,  x  and  one  which  required  a  license 
and  a  certain  term  of  residence  in  the  case  of  an  insurance 
broker.2  It  has  been  held  competent  for  the  state  legis- 
lature to  define  the  amount  of  butter  fats  which  must  be 
contained  in  any  article  sold  as  ice  cream,  not  for  the  pro- 
tection of  health,  but  so  that  purchasers  may  know  what 
they  are  getting  under  that  name.3  For  the  same  reason 
legislation  may  forbid  the  sale  of  condensed  milk  not 
made  from  full  cream  milk  unadulterated4;  and  may 
require  ingredients  to  be  stated  on  each  package  of 
goods. s 

It  is  competent  for  tne  States,  in  order  to  protect  the  public 
from  oppression,  to  supplement  the  common  law  as  to  mono- 
polies and  unlawful  combinations  in  restraint  of  trade.  On  this 
ground  the  Supreme  Court  has  upheld  legislation  forbidding 
retailers  to  combine  and  agree  not  to  buy  from  wholesalers 
who  sell  directly  to  customers,6  and  a  statutory  provision 
prohibiting  sales  at  one  place  lower  than  at  another  with 
the  intent  to  destroy  competition. 7  A  very  important  case 
is  that  of  Noble  State  Bank  v.  Haskell*  where  the  court  con- 
sidered the  constitutionality  of  a  statute  which  provided 
for  an  assessment  upon  every  state  bank's  average  daily 
deposits  for  the  purpose  of  creating  a  depositors'  guaranty 
fund.  <£The  court  held  it  a  valid  exercise  of  the  police  power 
for  the  protection  of  the  public  against  loss  from  bank  fail- 
ures. The  court  also  pointed  out  that  the  banks  themselves 
received  protection  in  exchange  for  the  money  contributed. 
So  persons  may  be  compelled  to  incorporate  before  carrying 
on  a  banking  business,  and  the  amount  of  capital  and  the 

1  Payne  v.  Kansas  (1918)  248  U.  S.  112. 

2  La  Tourette  v.  McMasters  (1919)  248  U.  S.  465. 

s  Hutchinson  Ice  Cream  Co.  v.  Iowa  (1916)  242  U.  S.  153. 

4  Hebe  Co.  v.  Shaw  (1919)  248  U.  S.  297. 

s  Corn  Products  Refining  Co.  v.  Eddy  (1919)  249  U.  S.  427. 

6  Grenada  Lumber  Co.  v.  Mississippi  (1910)  217  U.  S.  433. 

'Central  Lumber  Co.  v.  South  Dakota  (1912)  226  U.  S.  157.  Of 
course,  we  also  have  the  anti-trust  legislation  by  Congress  under  the 
commerce  clause.  See  sec.  90. 

8(1911)  219  U.  S.  104. 


§  274  THE  POLICE  POWER  577 

character  of  investments  in  such  business  may  be  regulated 
by  statute.1 

In  Chicago  and  Alton  Railroad  Co.  v.  Tran- 
barger2  a  statute  was  under  consideration  which  required 
railroads  to  make  suitable  openings  in  embankments  on 
their  rights  of  way  for  water  drainage.  This  was  held  to  be 
a  justifiable  exercise  of  the  police  power  to  prevent  property 
loss  to  adjacent  land  owners.  In  this  case  the  court  ex- 
presses most  broadly  the  proposition  that  the  police  power 
includes  regulations  in  the  interest  of  the  "general  welfare 
of  the  community."  That  the  States  may  legislate  to  pre- 
vent the  waste  of  natural  resources,  to  the  detriment  of  the 
community,  was  decided  in  Ohio  Oil  Company  v.  Indiana, 3 
where  the  court  upheld  legislation  forbidding  persons  in 
control  of  gas  or  oil  wells  to  permit  the  gas  or  oil  to  escape 
without  being  confined  in  receptacles  or  pipes. 4 

§274.  Regulation  of  Employment.  One  of  the  most 
interesting  developments  in  the  interpretation  of  the  Con- 
stitution has  been  in  connection  with  legislation  regulating 
hours  of  labor.  In  the  case  of  H olden  v.  Hardy5  the  Supreme 
Court  had  presented  to  it  the  question  whether  a  Utah 
statute  was  constitutional  which  forbade  the  employment  of 
workmen  over  eight  hours  a  day  in  mines  or  in  the  reduction 
or  refining  of  ores.  It  was  insisted  that  this  deprived  the 
parties  affected  of  liberty  of  contract  and  of  liberty  of 
acquiring  property  by  their  labor,  without  due  process.  The 
court  said,  "this  court  has  not  failed  to  recognize  the  fact 
that  the  law  is,  to  a  certain  extent,  a  progressive  science," 
and  it  declared  that  the  Constitution  should  not  be  so  con- 

1  Ibid.;  Shallenberger  v.  First  St.  Bk.  of  Holstein  (1911)  219  U.  S.  114. 

2  (1915)  238  U.  S.  67.    This  case  is  also  important  on  the  interplay 
of  the  police  power  and  the  constitutional  provision  against  legislation 
impairing  contracts.    See  sec.  196. 

J  (1900)  177  U.  S.  190. 

<See  also  Walls  v.  Midland  Carbon  Co.  (1920)  254  U.  S.  300. 
On  this  same  ground  are  supported  game  laws,  Geer  v .  Connecticut 
(1896)  161  U.  S.  519. 

s  (1896)  169  U.  S.  366.  Justice  Brewer  and  Justice  Peckham  dis- 
sented. 

37 


578       THE  AMERICAN  CONSTITUTION     §  274 

strued  as  to  deprive  the  State  of  the  power  to  amend  its 
laws  so  as  to  conform  to  the  wishes  of  the  citizens  for 
their  welfare.  The  court  felt  it  to  be  self-evident  that 
mining  and  smelting  are  businesses  of  such  a  character 
"that  they  can  no  longer  be  carried  on,  with  due  regard 
for  the  safety  and  health  of  those  engaged  in  them,  with- 
out special  protection  against  the  dangers  necessarily  in- 
cident to  these  employments,"  and  that  in  such  indus- 
tries long  hours  are  particularly  dangerous  to  health 
and  safety./  The  court  also  pointed  out  that  under 
modern  conditions  in  such  industries  as  were  under  con- 
sideration, employers  and  employees  do  not  stand  upon 
an  equality,  and  that  in  the  absence  of  state  regulation 
employees  may  be  compelled  to  conform  to  rules  which  are 
detrimental  to  their  well-being.  Seven  years  later  the  case 
of  Lochner  v.  New  York x  went  to  the  Supreme  Court  on  the 
question  of  the  constitutionality  of  a  statute  which  forbade 
employees  in  bakeries  or  confectionaries  to  work  over  ten 
hours  a  day.  The  New  York  Court  of  Appeals  had  held  the 
statute  constitutional.2  Justice  Peckham,  who  dissented 
in  the  earlier  case,  wrote  the  prevailing  opinion  in  the 
Lochner  case,  which  declared  the  New  York  statute  to  be 
unconstitutional.  Justice  Peckham  declared  that  "to  the 
common  understanding  the  trade  of  a  baker  has  never  been 
regarded  as  an  unhealthy  one,"  and  that,  therefore,  neither 
the  health  of  bakers  and  confectioners  or  of  the  public  was 
involved,  as  in  the  case  of  mining  and  smelting  which  are 
peculiarly  unhealthful  industries.  His  general  attitude 
is  represented  by  this  statement : 

1 '  Statutes  of  the  nature  of  that  under  review,  limiting 
the  hours  in  which  grown  and  intelligent  men  may  labor 
to  earn  their  living,  are  mere  meddlesome  interferences 
with  the  rights  of  the  individual,  and  they  are  not  saved 
from  condemnation  by  the  claim  that  they  are  passed  in 
the  exercise  of  the  police  power  and  upon  the  subject  of 
the  health  of  the  individual  whose  rights  are  interfered 
1  (i905)  198  U.  S.  45.  2  People  v.  Lochner  (1904)  177  N.  Y.  145. 


§  274  THE  POLICE  POWER  579 

with,  unless  there  be  some  fair  ground  reasonable  in  and 
of  itself,  to  say  that  there  is  material  danger  to  the  public 
health,  or  to  the  health  of  the  employees,  if  the  hours 
of  labor  are  not  curtailed."1 

Justice  Harlan  wrote  a  dissenting  opinion,  concurred  in  by 
Justices  White  and  Day,  in  which  he  said, 

' '  We  judicially  know  that  the  question  of  the  number  of 
hours  during  which  a  workman  should  continuously  labor 
has  been,  for  a  long  period,  and  is  yet,  a  subject  of  serious 
consideration  among  civilized  peoples,  and  by  those 
having  special  knowledge  of  the  laws  of  health.  ...  It 
is  enough  for  the  determination  of  this  case  and  it  is 
enough  for  this  court  to  know,  that  the  question  is  one 
about  which  there  is  room  for  debate  and  for  an  honest 
difference  of  opinion."2 

Justice  Holmes  also  wrote  a  dissenting  opinion.     He  said 
in  part3: 

' '  This  case  is  decided  upon  an  economic  theory  which  a 
large  part  of  the  country  does  not  entertain.  If  it  were 
a  question  whether  I  agreed  with  that  theory,  I  should 
desire  to  study  it  further  and  long  before  making  up  my 
mind.  But  I  do  not  conceive  that  to  be  my  duty,  because 
I  strongly  believe  that  my  agreement  or  disagreement  has 
nothing  to  do  with  the  right  of  a  majority  to  embody  their 
opinions  in  law.  .  .  .  The  Fourteenth  Amendment 
does  not  enact  Mr.  Herbert  Spencer's  Social  Statics.  .  .  . 
I  think  that  the  word  'liberty,'  in  the  Fourteenth  Amend- 
ment, is  perverted  when  it  is  held  to  prevent  the  natural 
outcome  of  dominant  opinion,  unless  it  can  be  said  that  a 
rational  and  fair  man  necessarily  would  admit  that  the 
statute  proposed  would  infringe  fundamental  principles 
as  they  have  been  understood  by  the  traditions  of  our 
people  and  our  law.  It  does  not  need  research  to  show 
that  no  such  sweeping  condemnation  can  be  passed  upon 

1  Lochner  v.  New  York  (1905)  198  U.  S.  45,  61. 

2  Ibid.,  71  and  72.  3  ibid.,  75  and  76. 


58o       THE  AMERICAN  CONSTITUTION     §  274 

the  statute  before  us.  A  reasonable  man  might  think  it  a 
proper  measure  on  the  score  of  health.  Men  whom  I 
certainly  could  not  pronounce  unreasonable  would  uphold 
it  as  a  first  instalment  of  a  general  regulation  of  the  hours 
of  work.  Whether  in  the  latter  aspect  it  would  be  open 
to  the  charge  of  inequality  I  think  it  unnecessary  to 
discuss."1 

It  has  seemed  worth  while  to  present  these  quotations  from 
the  judges'  opinions  for  the  purpose  of  showing  the  differ- 
ence in  the  attitudes  of  mind  of  the  majority  and  minority 
of  the  court  in  this  case,  which,  for  a  time,  seemed  to  put  a 
severe  check  upon  general  legislation  restricting  hours  of 
labor.  However,  within  three  years  the  court  unanimously 
held  an  Oregon  statute  constitutional  which  forbade  the 
employment  of  any  female  in  any  mechanical  establishment, 
factory,  or  laundry  for  more  than  ten  hours  a  day. 2  Mr. 
Brandeis,  now  a  justice  of  the  Supreme  Court,  prepared  the 
brief,  which  contained  an  elaborate  review  of  similar  legisla- 
tion throughout  the  world,  and  an  exhaustive  presentation  of 
scientific  knowledge  and  opinion  with  regard  to  the  evil 
effects  of  overwork  upon  women.  The  result  was  that 
the  Supreme  Court  was  satisfied  that  excessive  hours  of 
work  in  industry  generally  are  very  injurious  to  women,  and 
through  them  to  their  children,  and  so  to  the  community  at 
large ;  and  that  women  because  of  their  structure  and  mater- 
nal functions,  and  because  of  their  inadequate  training,  are 
at  a  disadvantage  in  the  economic  struggle.  It  was  on  these 
grounds  that  the  court  held  that  the  state  legislature  was 
justified  in  restricting  the  number  of  hours  of  work  for 
women  in  industry.3  In  1917  only  four  of  the  justices  who 

1  The  case  was  not  argued  as  one  involving  unreasonable  classification 
and  as  so  in  conflict  with  the  equal  protection  clause,  which  we  discuss  in 
chap.  33. 

3  Muller  v.  Oregon  (1908)  208  U.  S.  412. 

3  Sturges  v.  Beau  champ  (1914)  231  U.  S.  320  (sustaining  Illinois  child 
labor  law);  Riley  v.  Massachusetts  (1914)  232  U.  S.  671  (sustaining  54 
hours  of  work  per  week  statute  for  women);  Hawley  v.  Walker  (1914) 
232  U.  S.  718  (sustaining  an  Ohio  9  hour  statute  for  women) ;  Miller  v. 


§  274  THE  POLICE  POWER  581 

participated  in  the  decision  of  the  Lochner  case  remained  on 
the  bench,  and  three  of  those  who  remained  had  dissented 
in  that  case.  In  that  year  there  was  again  brought  before 
the  Supreme  Court  in  the  case  of  Bunting  v.  Oregon1  the 
question  of  the  constitutionality  of  a  state  statute  limiting 
the  hours  of  work  for  men  in  industries  not  peculiarly 
dangerous  or  unhealthful.  The  statute  prohibited  the  em- 
ployment of  any  person  in  a  mill,  factory  or  manufacturing 
establishment  for  more  than  ten  hours  a  day,  with  a  provi- 
sion that  an  employee  might  work  overtime  not  more  than 
three  hours  in  any  day  if  paid  at  the  rate  of  time  and  one 
half  for  overtime.  This  statute  was  held  constitutional  in  a 
brief  opinion  in  which  the  constitutionality  of  general 
regulations  of  hours  of  labor  is  almost  taken  for  granted, 
and  the  Lochner  case  is  not  even  mentioned,  although  in 
principle  it  is  obviously  overruled.  Three  justices  dis- 
sented, but  without  opinion.  Again  the  court  had  the 
advantage  of  a  most  illuminating  brief,  prepared  in  large 
part  by  Mr.  Brandeis  before  his  appointment  to  the  bench, 
which  contained  an  exhaustive  review  of  legislation  in  this 
country  and  abroad  regulating  hours  of  labor,  as  well  as  a 
most  interesting  collection  of  data  with  regard  to  the  effect 
of  overwork  upon  the  health,  safety,  and  morals  of  the 
workers. 2 

In  the  same  year  in  which  the  fight  for  hours  of  labor 
legislation  was  finally  won  the  Supreme  Court  had  presented 
to  it  the  question  of  the  constitutionality  of  minimum  wage 

Wilson  (1915)  236  U.  S.  373,  and  Bosley  v.  McLaughlin  (1915)  236 
U.  S.  385  (sustaining  California  48  hours  of  work  per  week  statute  for 
women) .  After  being  reversed  in  the  Lochner  case  the  New  York  Court 
of  Appeals  in  People  v.  Williams  (1907)  189  N.Y.  131,  held  a  statute  pro- 
hibiting night  work  for  women  unconstitutional,  but  in  People  ».  Schwein- 
ler  Press  (1915)  214  N.  Y.  395,  that  court  overruled  its  previous  decision 
and  upheld  such  a  statute. 

'  (1917)  243  U.  S.  426. 

3  Before  the  decision  of  the  case  just  discussed  the  New  York  Court  of 
Appeals  upheld  as  constitutional  the  so-called  one  day  of  rest  in  seven 
law,  applicable  to  those  working  in  factories  and  mercantile  establish- 
ments. People  v.  Klinck  Packing  Co.  (1915)  214  N.  Y.  121. 


582        THE  AMERICAN  CONSTITUTION     §274 

legislation.1  This  was  another  case  from  the  State  of 
Oregon.  The  statute  in  question  provided  that 

"it  shall  be  unlawful  to  employ  women  in  any  occupation 
within  the  State  of  Oregon  for  wages  which  are  inadequate 
to  supply  the  necessary  cost  of  living  and  to  maintain 
them  in  health." 

The  amount  of  such  wages  was  to  be  established  by  a  com- 
mission. The  Supreme  Court  of  Oregon  held  the  statute 
constitutional,  and  in  the  Supreme  Court  of  the  United 
States  this  decision  was  affirmed  by  an  evenly  divided  court.2 
It  would  seem  that  such  legislation  can  not  only  be  sup- 
ported as  an  exercise  of  the  police  power  for  the  protection 
of  the  physical  and  moral  well-being  of  the  workers  involved, 
and  so  through  them  for  the  protection  of  the  general  wel- 
fare of  the  community,  but  also  for  the  protection  of  the 
community  against  the  burden  of  making  up  the  deficit 
between  the  living  wage  and  the  wage  received.  It  may 
reasonably  be  expected  that  the  case  will  be  sustained  in 
later  decisions,  especially  as  minimum  wage  statutes  have 
already  been  adopted  in  a  considerable  number  of  our 
States. 

The  Supreme  Court  has  had  before  it  various  forms  of 
workmen's  compensation  acts  and  has  upheld  them  all.  In 
the  first  cas6^the  New  York  statute  was  considered,  which 
makes  the  employer  liable  according  to  a  prescribed 
schedule,  based  upon  loss  of  earning  capacity,  for  death  or 
disability  of  employees  resulting  from  accidental  personal 
injury  in  the  course  of  employment,  without  regard  to  fault 
as  a  cause,  except  where  injury  to  self  or  another  is  intended, 
or  results  solely  from  intoxication.  Waiver  of  the  right  to 

1  Stettler  v.  O'Hara  (1917)  243  U.  S.  629. 

2  Justice  Brandeis  took  no  part  in  this  decision,  having  been  of  counsel 
in  the  case.    The  brief  is  a  most  interesting  and  exhaustive  presentation 
of  legislation  on  the  subject  in  hand,  and  of  data  with  regard  to  the 
physical  and  moral  effect  of  underpayment. 

3  New  York  Cent.  R.  R.  Co.  v.  White  (1917)  243  U.  S.  188. 


§  274  THE  POLICE  POWER  583 

compensation,  and  assignment  or  release  of  claims  are  for- 
bidden. The  employer  must  secure  compensation  by  insur- 
ing through  a  state  fund,  or  through  an  approved  insurance 
company,  or  by  satisfactory  proof  of  his  ability  to  pay  the 
compensation  required  himself.  If  the  employer  fails  to 
secure  such  payments,  an  employee  may,  if  he  desires,  bring 
a  common  law  action  for  damages,  and  the  employer  may 
not  set  up  contributory  negligence,  negligence  of  a  fellow 
servant_or  assumption  of  risk.  The  court  held  that  there  is 
ncMproperty  right  in  rules  of  law,  and  it  is,  therefore,  not 
unconstitutional  to  take  away  defenses  of  contributory 
negligence,  fellow  servant's  negligence,  and  assumption  of 
risk.  It  was  also  held  that  in  imposing  an  absolute  liability 
upon  employers,  and  in  forbidding  contracts  waiving  rights 
of  compensation,  there  is  not  an  unconstitutional  taking  of 
property  or  interference  with  the  right  to  contract,  for  these 
provisions  are  a  proper  exercise  of  the  police  power  to  pro- 
tect the  employer  from  exorbitant  recoveries,  the  employee 
from  costly  litigation,  and  the  public  from  the  burdens 
ordinarily  incident  to  industrial  accidents.  The  method  of 
insuring  compensation  was  held  to  be  reasonable,  and, 
therefore,  not  to  transcend  the  police  power. r  The  Wash- 
ington statute,  which  was  before  the  court  at  the  same 
session,  was  particularly  distinguished  from  those  of  the  other 
States  in  that  it  gave  the  employer  no  option  as  to  the  way 
in  which  he  should  arrange  to  meet  his  obligations  under  the 
act,  but  required  him  to  contribute  to  a  state  fund  for  the 
compensation  of  employees.  The  court  held  that  com- 
pensation for  injuries  in  such  industries  as  are  enumerated 
is  of  such  public  importance  as  to  justify  the  employment  of 
the  State  as  the  agency  through  which  to  effect  that  pur- 
pose; that  the  protection  to  be  derived  by  the  employees 
and  the  public,  as  well  as  the  employers  themselves  is 
sufficient  justification  for  requiring  contribution  by  all  of 

1  In  Hawkins  v.  Bleakley  (1917)  243  U.  S.  210,  an  Iowa  statute  was 
upheld  which  varied  somewhat  from  the  New  York  act,  particularly 
in  that  the  employee  could  elect  whether  to  stand  on  the  statute  or  on 
the  common  law. 


584       THE  AMERICAN  CONSTITUTION    §  274 

the  employers  affected. x  It  has  been  held  constitutional  to 
take  from  the  employee  all  right  to  choose  between  his  former 
common  law  remedy  and  the  remedy  under  the  statute, 
and  to  restrict  him  to  the  latter2;  and  a  majority  of  the 
court  also  upheld  an  Arizona  statute  which  leaves  to  a  jury 
the  assessment  of  the  damages  suffered  by  the  employee.3 
THe  following  enactments  under  the  police  power  for  the 
protection  of  wage  earners  have  been  held  not  to  unconsti- 
tutionally deprive  persons  of  liberty  or  property :  that  store 
orders  or  other  evidences  of  indebtedness  issued  by  employ- 
ers in  payment  of  wages  should  be  redeemed  in  cash4;  that 
wages  should  not  be  paid  to  sailors  in  advance5;  that  coal  be 
measured  for  the  payment  of  wages  before  it  is  screened6; 
and  that  future  wages  may  not  be  assigned  without  the 
consent  of  the  wife  of  the  wage  earner  and  certain  other 
formalities.7  It  was  held  in  Brazee  v.  Michigan*  that 
it  was  constitutional  to  require  the  licensing  of  employ- 
ment agencies  and  to  regulate  them  for  the  protection  of 
those  seeking  employment.  However,  in  Adams  v.  Tanner9 
a  statute  was  declared  unconstitutional  which  prohibited 
such  agencies  to  collect  any  fee  from  those  desiring  employ- 
ment. It  was  declared  that,  while  the  business  of  obtaining 
positions  for  workers  may  be  regulated,  it  is  an  entirely 

1  Mountain  Timber  Co.  v.  Washington  (1917)  243  U.  S.  219.  Four 
justices  dissented  without  opinion.  On  the  point  referred  to  in  the  text 
the  case  really  seems  controlled  by  Noble  State  Bank  v.  Haskell  (1911) 
219  U.  S.  104,  discussed  above. 

3  Middleton  v.  Texas  P.  &  L.  Co.  (1919)  249  U.  S.  152. 

3  Arizona  Employers'  Liability  Cases  (1919)  250  U.  S.  400.     Four 
justices~3Tssenfecr 

4  Knoxville  Iron  Co.  v.  Harbison  (1901)  183  U.  S.  13. 

s  Latterson  v.  Bark  Eudora  (1903)  190  U.  S.  169.  This  was  a  federal 
statute  with  regard  to  interstate  and  foreign  commerce,  but  the  same 
principles  of  the  police  power  were  applied  as  are  applied  to  state  legis- 
lation. 

6  McLean  v.  Arkansas  (1909)  211  U.  S.  539,  two  judges  dissenting. 
Same  decision  by  a  unanimous  court  in  Rail  &  River  Coal  Co.  v.  Yaple 
(1915)  236  U.  S.  338- 

7  Mutual  Loan  Co.  v.  Martell  (1911)  222  U.  S.  225. 

« (1916)  241  U.  S.  340.  *  (1917)  244  U.  S.  590. 


§  274  THE  POLICE  POWER  585 

legitimate  business,  and  may  not  be  destroyed,  as  it  would 
be  if  all  fees  from  the  workers  were  prohibited.  In  Coppage 
v.  Kansas'1  the  Supreme  Court  had  before  it  a  statute  which 
made  it  a  misdemeanor  for  an  employer  to  require  an 
employee  to  agree  not  to  become  or  remain  a  member  of  any 
labor  organization  during  the  time  of  his  employment.  This 
was  held  by  the  majority  of  the  court  to  be  an  unreasonable 
restriction  upon  the  liberty  of  contract,  and,  therefore, 
unconstitutional.  Justice  Holmes,  Justice  Day,  and  Justice 
Hughes  dissented  very  vigorously  on  the  ground  that  labor 
organizations  are  entirely  legitimate,  that  a  State  may  pro- 
tect the  right  of  workers  to  join  such  organizations,  and  that 
it  cannot,  therefore,  be  said  that  the  limitation  put  upon  the 
power  to  contract  by  the  statute  in  question  is  so  clearly 
unreasonable  as  to  be  unconstitutional. 

'  (1915)  236  U.  S.  i. 


CHAPTER   XXXIII 

THE     EQUAL     PROTECTION     CLAUSE     OF     THE     FOURTEENTH 
AMENDMENT 

§275.  The  Purpose  of  Its  Adoption.  It  is  declared  in  the 
Fourteenth  Amendment  to  the  Federal  Constitution  that 
no  State  shall ' '  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws."  In  the  first  case  which  came 
before  the  Supreme  Court  under  the  reconstruction  amend- 
ments the  court  spoke  of  the  particular  purpose  of  the 
equal  protection  clause,  as  follows : 

' '  In  the  light  of  the  history  of  these  amendments,  and 
the  pervading  purpose  of  them,  which  we  have  already  dis- 
cussed, it  is  not  difficult  to  give  a  meaning  to  this  clause. 
The  existence  of  laws  in  the  States  where  the  newly  emanci- 
pated negroes  resided,  which  discriminated  with  gross 
injustice  and  hardship  against  them  as  a  class,  was  the 
evil  to  be  remedied  by  this  clause,  and  by  it  such  laws  are 
forbidden."1 

Though  the  Thirteenth  Amendment  guaranteed  to  tne 
colored  race  their  freedom,  and  though  the  first  sentence  of 
the  Fourteenth  Amendment  made  them  citizens  of  the 
United  States  and  of  the  States  in  which  they  might  reside, 
it  was  very  strongly  felt  that  they  needed  special  and  express 
protection  against  discriminatory  legislation.  This  was 
undoubtedly  the  reason  for  the  inclusion  in  the  Fourteenth 
Amendment  of  the  equal  protection  clause. 

§276.  The  Persons  Who  are  Protected  by  the  Equal  Pro- 
tection Clause.  The  Supreme  Court,  in  the  case  just  above 
referred  to,  said : 

1  Slaughter  House  Cases  (1872)  16  Wallace  36,  81. 

586 


§  276  EQUAL  PROTECTION  587 

"We  doubt  very  much  whether  any  action  of  a  State 
not  directed  by  way  of  discrimination  against  the  negroes 
as  a  class,  or  on  account  of  their  race,  will  ever  be  held 
to  come  within  the  purview  of  this  provision.  It  is  so 
clear  a  provision  for  that  race  and  that  emergency,  that  a 
strong  case  would  be  necessary  for  its  application  to  any 
other."1 

In  fact  the  first  cases  to  which  the  Supreme  Court  applied 
the  equal  protection  clause  were  cases  involving  discrimina- 
tion against  the  colored  race  in  the  empanneling  of  petit 
and  grand  juries.  It  was  declared  that  the  exclusion  of 
colored  persons  from  the  number  of  those  from  whom  a 
grand  or  petit  jury  is  drawn,  in  a  case  to  which  a  colored 
person  is  a  party,  constitutes  unconstitutional  discrimina- 
tion.2 Hpwever,  the  prophecy  that  the  equal  protection 
clause  would  be  applied  only  for  the  benefit  of  the  colored 
race  has  not  found  fulfillment  in  the  decisions.  The  lan- 
guage of  the  amendment  was,  in  fact,  so  general  as  not  to 
justify  such  interpretation.  In  Yick  Wo.  v.^  Hopkins3  it 
was  held  applicable  to  prevent  oiscrimination  against 
Chinamen,  the  court  saying, 

' '  These  provisions  are  universal  in  their  application,  to 
all  persons  within  the  territorial  jurisdiction,  without 
regard  to  any  difference  of  race,  of  color,  or  of  nationality ; 
and  the  equal  protection  of  the  laws  is  a  pledge  of  the 
protection  of  equal  laws."4 

In  Truax  v.  Raich 5  the  Supreme  Court  held  unconstitutional 
a  state  statute  which  required  employers  of  more  than  five 
persons  to  employ  eighty  per  cent,  qualified  voters  or  native 

1  Slaughter  House  Cases  (1872)  16  Wallace  36,  81. 

2  Strauder  v.  West  Virginia  (1880)  100  U.  S.  303;  Neal  v.  Delaware 
(1880)  103X7.  S.  370.    Later  cases  on  this  point  are  Carter  v.  Texas  (1900) 
177  U.  S.  442;  Marin  v.  Texas  (1906)  200  U.  S.  316.    But  equal  protection 
does  not  require  that  any  part  of  a  jury  trying  a  negro  shall  actually  be 
composed  of  persons  of  his  race,  as  long  as  they  are  not  excluded  on  that 
ground.    In  re  Wood  (1891)  140  U.  S.  278. 

3  (1886)  1 18  U.  S.  356.  4  Ibid.,  369.  s  (1915)  239  U.  S.  33. 


588       THE  AMERICAN  CONSTITUTION    §  276 

born  citizens.  The  purpose  of  the  statute  was  frankly  to 
protect  citizens  against  non-citizens.  Since  "the  descrip- 
tion— 'any  person  within  its  jurisdiction' — as  it  has  fre- 
quently been  held,  includes  aliens,"  this  discrimination  was 
held  to  conflict  with  the  equal  protection  clause.1  When 
the  question  came  before  the  Supreme  Court  as  to  whether 
the  equal  protection  clause  applies  to  corporations,  that 
court  had  so  little  doubt  on  the  subject  that  we  read  in  the 
report: 

"One  of  the  points  made  and  discussed  at  length  in  the 
brief  of  counsel  for  defendants  in  error  was  that  'Cor- 
porations are  persons  within  the  meaning  of  the  Four- 
teenth Amendment  to  the  Constitution  of  the  United 
States.'  Before  argument 

"Mr.  Chief  Justice  Waite  said :  'The  court  doe%s  not  wish 
to  hear  argument  on  the  question  whether  the  provision 
in  the  Fourteenth  Amendment  to  the  Constitution,  which 
forbids  a  State  to  deny  to  any  person  within  its  jurisdic- 
tion the  equal  protection  of  the  laws,  applies  to  these  cor- 
porations. We  are  all  of  opinion  that  it  does.'  "  2 

x  In  Patsone  v.  Pennsylvania  (1914)  232  U.  S.  139,  the  court  had 
before  it  a  statute  which  made  it  unlawful  for  any  unnaturalized 
foreigner  to  kill  any  wild  bird  or  animal  except  in  defense  of  person  or 
property,  and  "to  that  end  "  made  it  unlawful  for  such  person  to  own  or 
possess  a  shotgun  or  rifle.  The  court  said:  "The  discrimination  un- 
doubtedly presents  a  more  difficult  question.  But  we  start  with  the 
general  consideration  that  a  State  may  classify  with  reference  to  the 
evil  to  be  prevented,  and  that  if  the  class  discriminated  against  is  or 
^easonably  might  be  considered  to  define  those  from  whom  the  evil 
mainly  is  to  be  feared,  it  properly  may  be  picked  out.  .  .  .  The  ques- 
tion therefore  narrows  itself  to  whether  this  court  can  say  that  the  Legis- 
lature of  Pennsylvania  was  not  warranted  in  assuming  as  its  premise 
for  the  law  that  the  resident  unnaturalized  aliens  were  the  peculiar 
source  of  the  evil  that  it  desired  to  prevent.  ...  It  is  enough  that  this 
court  has  no  such  knowledge  of  local  conditions  as  to  be  able  to  say  that 
it  was  manifestly  wrong." 

3  Santa  Clara  County  v.  Southern  Pac.  Ry.  Co.  (1886)  118  U.  S.  394, 
396.  See  also  Southern  Ry.  Co.  v.  Greene  (1910)  216  U.  S.  400.  Thus 
a  corporation  comes  within  the  scope  of  the  equal  protection  clause  of 
the  Fourteenth  Amendment,  though  it  may  not  claim  the  "privileges 


§  276  EQUAL  PROTECTION  589 

It  is  important  to  notice  that  while  the  due  process  clause 
applies  to  "any  person,"  a  State  is  only  prohibited  to  pass 
laws  which  will  deny  the  equal  protection  of  the  law  to  ' '  any 
person  within  its  jurisdiction."  So  a  natural  person  who  is 
not  within  the  jurisdiction  of  a  State  may  not  claim  to  come 
within  the  purview  of  the  equal  protection  clause, x  though 
if  he  is  a  citizen  of  a  State  he  may  claim  all  of  the  ' '  privileges 
and  immunities  of  citizens  in  the  several  States,"2  while  on 
the  other  hand  the  equal  protection  clause  protects  the 
citizens  of  the  several  States  from  discriminatory  action  by 
their  own  States — a  protection  which  was  not  afforded  them 
by  the  Federal  Constitution  before  the  adoption  of  the 
Fourteenth  Amendment — and  also  protects  corporations. 
A  natural  person  is  within  the  jurisdiction  of  a  State  if  he  is 
a  resident  of  the  State,  •  or  if  he  is  physically  within  its 
borders.3  A  corporation,  like  a  natural  person,  must  be 
within  the  jurisdiction  of  a  State  to  come  within  the  opera- 
tion of  the  equal  protection  clause.  In  Blake  v.  McClung4 
the  court,  in  holding  that  the  clause  did  not  apply  to  the 
foreign  corporation  claiming  its  protection,  said : 

"Without  attempting  to  state  what  is  the  full  import 
of  the  words,  'within  its  jurisdiction,'  it  is  safe  to  say  that 
a  corporation  not  created  by  Tennessee,  nor  doing  busi- 
ness there  under  conditions  that  subjected  it  to  process 
issuing  from  the  courts  of  Tennessee  at  the  instance  of 
suitors,  is  not,  under  the  above  clause  of  the  Fourteenth 
Amendment,  within  the  jurisdiction  of  that  State." 

In  the  later  case  of  Southern  Railway  Company  v.  Greene5  in 
which  the  foreign  corporation  successfully  claimed  the  pro- 

and  immunities"  of  a  citizen  of  a  State  under  the  Fourth  Article.  See 
Pembina  Cons.  Silv.  Min.  Co.  v.  Pennsylvania  (1888)  125  U.  S.  181,  and 
the  discussion  in  sec.  206. 

1  Blake  v.  McClung  (1898)  172  U.  S.  239,  260;  Sully  v.  American 
National  Bank  (1900)  178  U.  S.  289,  303. 

3  U.  S.  Const,  Art.  IV,  sec.  2.    See  discussion  in  chap.  24. 

3  Sully  v.  American  Nat.  Bk.  (1900)  178  U.  S.  289,  303. 

«  (1898)  172  U.  S.  239,  261.  s  (1910)  216  U.  S.  400,  413. 


590       THE  AMERICAN  CONSTITUTION     §  276 

tection  of  the  constitutional  clause  under  consideration,  the 
court  expressed  itself  as  follows : 

"Is  the  plaintiff  corporation  a  person  within  the  juris- 
diction of  the  State  of  Alabama  ?  In  the  present  case  the 
plaintiff  is  taxed  because  it  is  doing  business  within  the 
State  of  Alabama.  The  averments  of  the  complaint, 
admitted  by  the  demurrer,  show  it  has  acquired  a  large 
amount  of  railroad  property  by  authority  of  and  in 
compliance  with  the  laws  of  the  State;  that  it  is  subject 
to  the  jurisdiction  of  the  courts  of  the  State ;  that  it  has 
paid  taxes  upon  its  property,  and  also  upon  its  franchises 
within  the  State;  in  'short,  that  it  came  into  the  State  in 
compliance  with  its  laws,  and  at  the  time  of  the  imposi- 
tion of  the  tax  in  question  had  been  for  many  years 
carrying  on  business  therein  under  the  laws  of  the  State. 
We  can  have  no  doubt  that  a  corporation  thus  situated  is 
within  the  jurisdiction  of  the  State.  Blake  v.  Me  Clung, 
172  U.  S.  239." 

In  another  case  decided  in  the  same  year  the  court,  in  hold- 
ing that  a  foreign  corporation  came  within  the  scope  of  the 
equal  protection  clause,  said  that, 

"the  corporation  was  within  the  State,  complying  with  its 
laws,  and  had  acquired,  under  the  sanction  of  the  State,  a 
large  amount  of  property  within  its  borders,  and  thus  had 
become  a  person  within  the  State  within  the  meaning  of 
the  Constitution,  and  entitled  to  its  protection."1 

Here  nothing  is  expressly  said  about  the  corporation  being 
subject  to  the  jurisdiction  of  the  courts  of  the  State.  It  is 
possible  that  the  court  means  that  a  corporation  becomes  a 
person  within  the  jurisdiction  of  a  State  when  it  is  permitted 
by  the  State  to  enter  and  to  acquire  property,  though  not 
under  conditions  which  subject  it  to  process  issuing  from 
the  State  courts,  but  it  is  more  probable  that  the  court 
assumed  that  a  corporation  which  had  entered  the  State 
with  the  State's  consent  and  had  been  allowed  to  acquire  a 
1  Herndon  v.  Chicago  &  R.  I.  &  P.  Ry.  Co.  (1910)  218  U.  S.  135,  158. 


§  277  EQUAL  PROTECTION  591 

large  amount  of  property,  had  upon  entering  submitted 
itself  to  the  jurisdiction  of  the  courts  of  the  State. 

§277.  It  Is  the  State  which  Must  Not  Deny  Equal  Protec- 
tion. Believing  that  it  was  acting  in  pursuance  of  the  fifth 
section  of  the  Fourteenth  Amendment,  which  provides  that 
* '  Congress  shall  have  power  to  enforce  this  article  by  appro- 
priate legislation,"  Congress  in  1875  passed  the  so-called 
Civil  Rights  Act,  which  among  other  things  made  it  a  mis- 
demeanor for  proprietors  of  inns,  public  conveyances, 
theaters,  and  other  places  of  amusement  to  deny  equal 
enjoyment  of  their  facilities  to  any  person  on  account  of 
race,  color,  or  previous  condition  of  servitude.  These 
provisions  of  the  statute  were  held  unconstitutional  by  the 
Supreme  Court  in  the  Civil  Rights  Cases.1  The  court 
pointed  out  that,  "  It  is  state  action  of  a  particular  character 
that  is  prohibited.  Individual  invasion  of  individual  rights 
is  not  the  subject-matter  of  the  amendment."2 

Though  neither  the  due  process  clause  nor  the  equal 
protection  clause  applies  to  acts  of  individuals,  their  oper- 
ation is  not  confined  to  the  acts  of  the  States  through  their 
legislatures,  but  extends  to  the  acts  of  any  state  officer. 

' '  They  have  reference  to  actions  of  the  political  body 
denominated  a  State,  by  whatever  instruments  or  in 
whatever  modes  that  action  may  be  taken.  A  State  acts 
by  its  legislative,  its  executive,  or  its  judicial  authorities. 
It  can  act  in  no  other  way.  The  constitutional  provision, 
therefore,  must  mean  that  no  agency  of  the  State,  or  of 
the  officers  or  agents  by  whom  its  powers  are  exerted, 
shall  deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws."3 

A  claim  that  a  person's  rights  protected  by  the  Fourteenth 
Amendment  have  been  infringed  is  not  answered  by  showing 
that  the  act  complained  of  was  done  by  a  state  officer  with- 

'  (1883)  109  U.  S.  3,  ii.  2  See  further  sec.  225. 

3  Ex  parte  Virginia  (1880)  100  U.  S.  339,  346;  Yick  Wo  v.  Hopkins 
(1886)  ii8U.  S.  356. 


592       THE  AMERICAN  CONSTITUTION     §  278 

out  authority,  or  contrary  to  statutory  provisions.     As  was 
said  by  Chief  Justice  White, 

"the  theory  of  the  amendment  is  that  where  an  officer  or 
other  representative  of  a  State,  in  the  exercise  of  the 
authority  with  which  he  is  clothed  misuses  the  power 
possessed  to  do  wrong  forbidden  by  the  amendment, 
inquiry  concerning  whether  the  State  has  authorized 
the  wrong  is  irrelevant,  and  the  federal  judicial  power  is 
competent  to  afford  redress  for  the  wrong  by  dealing  with 
the  officer  and  the  result  of  his  exertion  of  power."1 

In  Heim  v.  Me  Call2  the  Supreme  Court  had  under  con- 
sideration a  New  York  statute  which  provides  that  only 
citizens  of  the  United  States  can  be  employed  on  public 
works,  and  that  citizens  of  New  York  shall  be  given  prefer- 
ence. The  court  held  that  the  Fourteenth  Amendment  had 
no  application  to  such  a  statute,  on  the  ground  that  the 
statute  dealt  only  with  the  State  as  employer,  and  that 
the  State  as  employer  can  employ  whom  it  likes. 

§278.  Rights  Which  Are  Protected.  In  one  of  the  early 
cases  Justice  Field  said  of  the  equal  protection  clause  that 

"the  equality  of  the  protection  secured  extends  only  to 
civil  rights  as  distinguished  from  those  which  are  political, 
or  arise  from  the  form  of  government  and  its  mode  of 
administration.  ...  It  secures  to  all  their  civil  rights 
upon  the  same  terms ;  but  it  leaves  political  rights,  or  such 
as  arise  from  the  form  of  government  and  its  adminis- 
tration, as  they  stood  previous  to  its  adoption.  .  .  .  This 
is  manifest  from  the  fact  that  when  it  was  desired  to  con- 
fer political  power  upon  the  newly  made  citizens  of  the 
States,  as  was  done  by  inhibiting  the  denial  to  them  of  the 
suffrage  on  account  of  race,  color,  or  previous  condition  of 
servitude,  a  new  amendment  was  required."3 

1  Home  Tel.  Co.  v.  Los  Angeles  (1913)  227  U.  S.  278,  287. 

2  (1915)  239  U.  S.  175. 

a  Ex  parte  Virginia  (1879)  IO°  U.  S.  339,  367.  See  also  Neal  v.  Dela- 
ware (1880)  103  U.  S.  370,  408. 


§  279  EQUAL  PROTECTION  593 

It  has  been  for  the  protection  of  civil  rights  that  the  equal 
protection  clause  has  been  resorted  to,  and  in  the  case  of 
Barbier  v.  Connelly,1  in  which  we  find  perhaps  the  fullest 
statement  of  the  purpose  of  this  provision,  the  full  enumer- 
ation of  the  rights  which  are  protected  is  an  enumeration  of 
civil,  not  political  rights. 

§279.  Reasonable  Differences  Not  Forbidden.  The  guar- 
anty against  denial  of  equal  protection  of  the  laws  does  not 
require  that  absolutely  the  same  rules  of  law  shall  apply  / 
to  all  persons  irrespective  of  differences  of  circumstance. 2  * 
Such  a  result  would  obviously  be  obstructive  of  reasonable 
and  necessary  legislation.  What  the  constitutional  provi- 
sion has  been  interpreted  to  mean  is  that  no  person  within 
the  jurisdiction  of  a  State  shall  be  denied  by  that  State  the 
protection  of  reasonably  equal  laws.  As  has  been  said  by 
the  Supreme  Court,  "the  equal  protection  of  the  laws  is  a 
pledge  of  the  protection  of  equal  laws"3;  and  again,  "the 
equal  protection  of  the  laws  means  subjection  to  equal  laws, 
applying  alike  to  all  in  the  same  situation."4  It  is,  there- 
fore, constitutional  to  classify  persons,  placing  those  whose 
circumstances  are  substantially  similar  under  the  same 
rule  of  law,  but  applying  different  rules  of  law  to  those 
whose  circumstances  are  substantially  dissimilar. 

"Class  legislation,  discriminating  against  some  and 
favoring  others,  is  prohibited,  but  legislation  which,  in 
carrying  out  a  public  purpose,  is  limited  in  its  application, 
if  within  the  sphere  of  its  operation  it  affects  alike  all 
persons  similarly  situated,  is  not  within  the  amendment." s 

'  (1885)  113  U.S.  27,  31. 

a  "The  Fourteenth  Amendment  does  not  profess  to  secure  to  all  persons 
in  the  United  States  the  benefit  of  the  same  laws  and  the  same  remedies." 
Missouri  v.  Lewis  (1879)  101  U.  S.  22,  31. 

J  Yick  Wo  v.  Hopkins  (1886)  1 18  U.  S.  356,  369.  This  same  language 
is  used  in  Connolly  v.  Union  Sewer  Pipe  Co.  (1902)  184  U.  S.  540,  559, 
and  in  German  Alliance  Ins.  Co.  v.  Hale  (1911)  219  U.  S.  307,  319. 

*  Southern  Railway  Co.  v.  Greene  (1910)  216  U.  S.  400,  412. 

s  Barbier  v.  Connolly  (1885)  113  U.  S.  27,  31.  In  Hayes  v.  Missouri 
(1887)  120  U.  S.  68,  71,  the  court  said:  "The  Fourteenth  Amendment 

38 


594       THE  AMERICAN  CONSTITUTION     §  279 

But  classification  "must  always  rest  upon  some  difference 
which  bears  a  reasonable  and  just  relation  to  the  act  in 
respect  to  which  the  classification  is  proposed,  and  can  never 
be  made  arbitrarily  and  without  any  such  basis."1  The 
Supreme  Court  has  very  well  summarized  its  position 
as  follows2: 

"The  rules  by  which  this  contention  must  be  tested,  as 
is  shown  by  repeated  decisions  of  this  court,  are  these :  I . 
The  equal  protection  clause  of  the  Fourteenth  Amend- 
ment does  not  take  from  the  States  the  power  to  classify 
in  the  adoption  of  police  laws,  but  admits  of  the  exercise 
of  a  wide  scope  of  discretion  in  that  regard,  and  avoids 
what  is  done  only  when  it  is  without  any  reasonable  basis 
and  therefore  is  purely  arbitrary.  2.  A  classification 
having  some  reasonable  basis  does  not  offend  against  that 
clause  merely  because  it  is  not  made  with  mathematical 
nicety  or  because  in  practice  it  results  in  some  inequality. 
3.  When  the  classification  in  such  a  law  is  called  in 
question,  if  any  state  of  facts  reasonably  can  be  conceived 
that  would  sustain  it,  the  existence  of  that  state  of  facts 
at  the  time  the  law  was  enacted  must  be  assumed.  4. 

to  the  Constitution  of  the  United  States  does  not  prohibit  legislation 
which  is  limited  either  in  the  objects  to  which  it  is  directed,  or  by  the 
territory  within  which  it  is  to  operate.  It  merely  requires  that  all 
persons  subjected  to  such  legislation  shall  be  treated  alike,  under  like 
circumstances  and  conditions,  both  in  the  privileges  conferred  and  in  the 
liabilities  imposed." 

'  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Ellis  (1897)  165  U.  S.  150,  155.  "It  is 
true,  no  doubt,  that  where  size  is  not  an  index  to  an  admitted  evil  the 
law  cannot  discriminate  between  the  great  and  the  small,"  Engel  v. 
O'Malley  (1911)  219  U.  S.  128,  138,  and  such  was  held  to  be  the  case  in 
Getting  v.  Kansas  City  Stock  Yards  Co.  (1901)  183  U.  S.  79,  where  a 
statute  was  held  invalid  which  regulated  the  rates  of  stock  yards  doing 
more  than  a  certain  volume  of  business.  On  the  other  hand  workmen's 
compensation  acts  applying  to  those  employing  more  than  five  persons  are 
valid,  Jeffrey  Mfg.  Co.  v.  Blagg  (1915)  235  U.  S.  571,  as  is  a  statute  for- 
bidding the  assignment  of  wages  to  secure  loans  of  less  than  $200,  Mutual 
Loan  Co.  v.  Martell  (1911)  222  U.  S.  225.  The  classification  of  lar- 
cenies according  to  the  value  of  the  property  taken  is  familiar  to  all. 

3  Lindsley  v.  Natural  Carbonic  Gas  Co.  (191 1)  220  U.  S.  61,  78. 


§  280  EQUAL  PROTECTION  595 

One  who  assails  the  classification  in  such  a  law  must 
carry  the  burden  of  showing  that  it  does  not  rest  upon  any 
reasonable  basis,  but  is  essentially  arbitrary." 

§280.  Special  Assessments  and  Other  Geographical  Classi- 
fications. It  is  perfectly  constitutional  for  a  State  to  pro- 
vide by  general  taxation  for  the  cost  of  an  improvement 
which  will  be  particularly  beneficial  to  a  given  locality.1 
However,  when  property  within  a  certain  area  will  be 
specially  benefited  by  a  local  improvement  it  seems  more 
reasonable  that  that  property  should  bear  the  cost  of  such 
improvement  than  that  it  should  be  paid  for  by  general 
taxation,  and  to  provide  for  local  assessment  to  defray  the 
cost  of  local  improvements  is  to  establish  for  this  purpose 
a  classification  which  is  entirely  reasonable  in  character. 2 
This  principle  may  be  applied  validly  to  such  purposes  as 
the  opening  and  improvement  of  highways,3  the  draining 
of  swamp  land, 4  and  the  improvement  of  harbors. 5  It  is, 
of  course,  necessary  that  there  be  some  reasonable  basis  for 
the  determination  of  those  upon  whom  the  assessment  is  to 
be  levied,  and  that  there  be  a  uniform  plan  of  assessment  for 
all  those  who  are  affected.  Clearly  the  most  equitable  basis 
of  special  assessment  is  the  special  benefit  actually  accruing 
to  each  piece  of  property  within  the  prescribed  area,  but  it 
is  not  unconstitutional  to  employ  as  a  measure  the  frontage 
upon  the  highway  or  other  improvement, — this  is  known  as 
the  " front-foot  rule" — or  the  superficial  area  of  the  prop- 
erty affected. 6 

1  Mobile  County  v.  Kimball  (1880)  102  U.  S.  691;  Bauman  v.  Ross 
(1897)  167  U.  S.  548. 

2  Ibid.,  and  cases  there  cited. 

3  Norwood  v.  Baker  (1898)  172  U.  S.  269;  Louisville  &  N.  R.  Co.  v. 
Barber  Asphalt  Co.  (1905)  197  U.  S.  430. 

4  Hagar  v.  Reclamation  Dist.  (1884)  in  U.  S.  701. 
s  Mobile  County  v.  Kimball  (1880)  102  U.  S.  691. 

6  Walstonw.  Nevin  (1888)  128  U.  S.  578;  Louisville  &  N.  R.  R.  Co.  v. 
Barber  Asphalt  Co.  (1905)  197  U.  S.  430;  Cleveland  &  St.  L.  Ry.  v. 
Porter  (1908)  210  U.  S.  177.  However,  if  it  appears  that  the  assessment 
is  levied  on  the  basis  of  the  area  of  the  abutting  lots,  and  that  they  vary 


596       THE  AMERICAN  CONSTITUTION     §  280 

In  Norwood  v.  Baker*  upon  the  opening  of  a  street  the  full 
cost  of  such  opening  was  charged  against  the  abutting  land 
by  the  front-foot  rule,  without  any  reference  to  the  actual 
benefits  received.  In  that  case  the  court  declared  that, 
"the  exaction  from  the  owner  of  private  property  of  the 
cost  of  a  public  improvement  in  substantial  excess  of  the 
special  benefits  accruing  to  him  is,  to  the  extent  of  such 
excess,  a  taking,  under  the  guise  of  taxation,  of  private 
property  for  public  use  without  compensation,"2  and  the 
court,  therefore,  held  that  the  assessment  was  invalid 
since  it  excluded  any  inquiry  as  to  special  benefits.  This 
decision  does  not  seem  to  be  correct.  There  is  no  lack 
of  equal  protection  as  long  as  the  assessment  area  has 
reasonable  limits,  and  as  long  as  those  within  it  are  assessed 
on  the  same  basis.  Also,  the  fact  that  the  assessment 
exceeds  special  benefits  would  not  seem  to  make  the  taking 
one  which  is  without  due  process,  any  more  than  a  general 
tax  where  there  is  no  benefit  makes  the  tax  lacking  in  due 
process. 3  The  special  benefit  is  the  justification  for  classing 
those  within  the  benefited  area  together  for  assessment, 
but  would  seem  not  to  mark  the  constitutional  limit  of  such 
assessment.  As  a  matter  of  fact  the  principle  acted  upon 
in  the  Norwood  case  seems  to  be  quite  repudiated  in  French 
v.  Barber  Asphalt  Paving  Company,*  wherein  an  assess- 
ment levied  by  the  front-foot  rule,  without  any  opportunity 
for  the  determination  of  special  benefits,  was  upheld.  Al- 
though the  Norwood  case  was  not  actually  overruled,  it  was 
distinguished  upon  its  particular  facts,  namely,  that  all  of 
the  cost  of  putting  through  a  street  was  charged  to  the  prop- 
erty of  one  person.  This  hardly  seems  an  adequate  ground 

widely  in  depth,  such  assessment  will  be  held  to  constitute  a  denial  of 
equal  protection.  Gast  Realty  &  Inv.  Co.  v.  Schneider  Granite  Co.  (1916) 
240  U.  S.  55. 

1  (1898)  172  U.  S.  269. 

2  Ibid.,  279.    Three  justices  dissented. 

3  The  discussion  of  this  point  belongs,  perhaps,  above  where  taxation 
and  due  process  are  considered,  but  is  retained  here  to  complete  the 
treatment  of  special  assessments. 

*  (1901)  181  U.  S.  324,  three  justices  dissenting. 


§  280  EQUAL  PROTECTION  597 

for  distinction,  since  the  one  person  owned  all  of  the  abut- 
ting property.  In  Louisville  &  Nashville  Railroad  Company 
v.  Barber  Asphalt  Company,*  the  railroad  attacked  the  con- 
stitutionality of  an  assessment  for  grading,  curbing,  and 
paving,  which  apportioned  the  expense  among  abutting 
properties  by  the  front-foot  rule,  claiming  that  its  property 
was  rather  hurt  than  benefited  by  the  work  done,  and  that 
no  assessment  could,  therefore,  be  levied  against  its  land. 
The  court  answered2: 

"...  The  result  of  the  supposed  constitutional  principle 
is  simply  to  shift  the  burden  to  a  somewhat  large  taxing 
district,  the  municipality,  and  to  disguise  rather  than  to 
answer  the  theoretic  doubt.  ...  It  now  is  established 
beyond  permissible  controversy  that  laws  like  the  one 
before  us  are  not  contrary  to  the  Constitution  of  the 
United  States. 

"A  statute  like  the  present  manifestly  might  lead  to 
the  assessment  of  a  particular  lot  for  a  sum  larger  than  the 
value  of  the  benefits  to  that  lot.  The  whole  cost  of  the 
improvement  is  distributed  in  proportion  to  area,  and  a 
particular  area  might  receive  no  benefits  at  all,  at  least  if 
its  present  and  probable  use  be  taken  into  account.  If 
that  possibility  does  not  invalidate  the  act  it  would  be 
surprising  if  the  corresponding  fact  should  invalidate  an 
assessment.  Upholding  the  act  as  embodying  a  principle 
generally  fair  and  doing  as  nearly  equal  justice  as  can  be 
expected  seems  to  import  that  if  a  particular  case  of  hard- 
ship arises  under  it  in  its  natural  and  ordinary  application, 
that  hardship  must  be  born  as  one  of  the  imperfections  of  hu- 
man things.  And  this  has  been  the  implication  of  the  cases. ' ' 

However,  the  court  also  pointed  out  that  because  the 
property  would  not  be  benefited  for  railroad  purposes  by  the 
improvement,  it  did  not  necessarily  follow  that  it  was  not 
in  fact  benefited  in  its  general  relations,  and  it  was  fair  to 
presume  that  it  was.  In  Marvin  v.  District  of  Columbia*  the 

1  (1905)  197  U.  S.  430,  two  justices  dissenting. 

3  Ibid.,  433.  3  (1907)  205  U.  S.  135. 


598       THE  AMERICAN  CONSTITUTION     §  280 

court  had  before  it  a  statute  which  provided  for  the  assess- 
ment of  the  cost  of  street  opening  upon  the  adjoining  land 
according  to  the  benefits  received.  The  amount  of  the 
assessment  on  the  particular  property  in  question  was 
equal  to  twice  the  value  of  the  property.  The  court,  after 
referring  to  the  Louisville  &  Nashville  case  just  discussed, 
said, 

"but  when  the  chance  of  the  cost  exceeding  the  benefit 
grows  large  and  the  amount  of  the  not  improbable  excess 
is  great,  it  may  not  follow  that  the  case  last  cited  will  be  a 
precedent.  Constitutional  rights  like  others  are  matters 
of  degree."1 

The  court  suggests  this  as  a  ground  for  distinguishing  Nor- 
wood v.  Baker2  and  French  v.  Barber  Asphalt  Paving  Company. 3 
But  the  court  held  that  the  statute  under  consideration 
might  be  interpreted  as  only  permitting  assessment  to  the 
extent  of  the  benefits  received,  and  as,  therefore,  not  raising 
the  constitutional  question. 4 

It  is  the  general  practice  in  the  States  to  fix  geographical 
limits  to  the  jurisdiction  of  lower  courts,  and  also  to  dis- 
tinguish between  the  jurisdiction  of  different  courts  on  the 
basis  of  the  character  of  suits  involved,  or  the  amounts  in 
controversy.  This  is  held  to  be  entirely  constitutional.5 

1  Ibid.,  139.         *  (1898)  172  U.  S.  269.         3  (1901)  181  U.  S.  324. 

*  In  Wagner  v.  Baltimore  (1915)  239  U.  S.  207,  a  state  statute  provided 
that  the  cost  of  paving  previously  laid  should  be  assessed  against  the 
adjoining  property  by  the  front-foot  rule.  The  court  declared  that  it 
was  not  necessary  to  provide  for  a  hearing  as  to  the  benefits  to  be  de- 
rived from  such  paving.  The  legislature  could  constitutionally  deter- 
mine the  amount  to  be  raised  and  the  property  benefited,  and  direct  the 
assessment  against  such  property.  The  objection  that  the  assessment 
was  for  previously  constructed  improvements  was  held  not  to  be  valid. 
However,  the  court  said  that  there  might  under  the  guise  of  assessment 
be  such  arbitrary  abuse  of  legislative  power  as  to  be  a  denial  of  due 
process.  The  Norwood  case  is  referred  to  as  being  supportable  on 
this  ground. 

s  "The  amendment  could  never  have  been  intended  to  prevent  a 
State  from  arranging  and  parcelling  out  the  jurisdiction  of  its  several 
courts  at  its  discretion.  No  such  restriction  as  this  could  have  been  in 


§  280  EQUAL  PROTECTION  599 

Furthermore,  for  administrative  purposes  the  States  are 
divided  into  counties  and  municipalities,  and  these  latter  are 
themselves  divided  into  different  classes,  and  different  laws 
may  be  made  applicable  to  the  different  subdivisions,  or 
they  may  under  delegated  power  enact  different  local  regu- 
lations. This  is  undoubtedly  constitutional,  as  long  as 
those  within  the  local  area  are  treated  alike,  and  as  long  as 
there  is  no  obvious  and  wholly  unreasonable  discrimination 
against  some  class  as  a  result  of  such  local  differences  in  the 
law.1  Local  option  legislation,  which  may  become  oper- 


view,  or  could  have  been  included  in  the  prohibition  that  'no  person 
shall  deny  to  any  person  within  its  jurisdiction  the  equal  protection  of 
the  laws.'  .  .  .  The  last  restriction,  as  to  the  equal  protection  of  the 
laws,  is  not  violated  by  any  diversity  in  the  jurisdiction  of  the  several 
courts  as  to  subject-matter,  amount,  or  finality  of  decision,  if  all  persons 
within  the  territorial  limits  of  their  respective  jurisdictions  have  an  equal 
right,  in  like  case  and  under  like  circumstances,  to  resort  to  them  for 
redress.  ...  As  respects  the  administration  of  justice,  it  may  estab- 
lish one  system  of  courts  for  cities  and  another  for  rural  districts,  one 
system  for  one  portion  of  its  territory,  and  another  system  for  another 
portion."  Missouri  v.  Lewis  (1879)  101  U.  S.  22,  30. 

1  "We  might  go  still  further,  and  say,  with  undoubted  truth,  that 
there  is  nothing  in  the  Constitution  to  prevent  any  State  from  adopting 
any  system  of  laws  or  judicature  it  sees  fit  for  all  or  any  part  of  its  terri- 
tory. If  the  State  of  New  York,  for  example,  should  see  fit  to  adopt  the 
civil  law  and  its  method  of  procedure  for  New  York  City  and  the  sur- 
rounding counties,  and  the  common  law  and  its  method  of  procedure 
for  the  rest  of  the  State  there  is  nothing  in  the  Constitution  of  the  United 
States  to  prevent  its  doing  so.  This  would  not,  of  itself,  within  the  mean- 
ing of  the  Fourteenth  Amendment,  be  a  denial  to  any  person  of  the  equal 
protection  of  the  laws.  If  every  person  residing  or  being  in  either  portion 
of  the  State  should  be  accorded  the  equal  protection  of  the  laws  prevail- 
ing there,  he  could  not  justly  complain  of  a  violation  of  the  clause  re- 
ferred to.  ...  It  is  not  impossible  that  a  distinct  territorial  establish- 
ment and  jurisdiction  might  be  intended  as,  or  might  have  the  effect  of, 
a  discrimination  against  a  particular  race  or  class,  where  such  race  or 
class  should  happen  to  be  the  principle  occupants  of  the  disfavored 
district."  Missouri  v.  Lewis  (1879)  101  U.  S.  22,  31,  32.  See  also  Wil- 
liams v.  Eggleston  (1898)  170  U.  S.  304  (several  towns  may  be  formed 
into  a  single  municipal  corporation  and  subjected  to  different  highway 
laws  from  those  in  other  parts  of  the  State) ;  Mason  v.  Missouri  (1900) 
179  U.  S.  328  (cities  may  be  classified  according  to  population,  and 


6oo       THE  AMERICAN  CONSTITUTION     §  281 

ative  in  some  localities  and  not  in  others,  falls  within  this 
principle. I 
§281.     Classification  for  General  Taxation. 

"A  tax  may  be  imposed  only  upon  certain  callings  and 
trades,  for  when  the  State  exerts  its  power  to  tax,  it  is  not 
bound  to  tax  all  pursuits  or  all  property  that  may  be  legi- 
timately taxed  for  governmental  purposes.  It  would  be 
an  intolerable  burden  if  a  State  could  not  tax  any  property 
or  calling  unless,  at  the  same  time,  it  taxed  all  property  or 
all  callings.  Its  discretion  in  such  matters  is  very 
great.  .  .  ."2 

It  has  been  held  constitutional  to  tax  corporations  upon  a 
different  basis  from  individuals  in  the  same  business3;  to 
impose  a  different  tax  rate  upon  tangible  and  intangible 
property4;  to  classify  railroads  separately  for  taxation, 5  and 
to  do  the  same  with  regard  to  express  companies6;  to  make  a 
distinction  for  taxation  between  tracts  of  one  thousand 
acres  and  those  which  are  smaller7;  and  to  base  the  amount 
of  the  tax  on  the  amount  of  business  done  in  a  place. 8  The 
Supreme  Court  in  American  Sugar  Refining  Company  v. 
Louisiana9  upheld  a  statute  which  imposed  a  license  fee 
upon  those  engaged  in  the  business  of  refining  sugar  and 
molasses  while  exempting  those  refining  their  own  products. 
Inheritance  taxes  are  in  very  general  use  in  Europe,  and 
in  some  of  our  States  provisions  for  such  taxes  have  been 

different  regulations  as  to  elections  applied  to  different  classes) ;  Gardner 
v.  Michigan  (1905)  199  U.  S.  325  (the  law  relating  to  jury  trials  in  one 
county  of  a  State  may  be  different  from  that  relating  to  jury  trials  in 
the  rest  of  the  State). 

1  Rippey  v.  Texas  (1904)  193  U.  S.  504;  Ohio  v.  Dollison  (1904)  194 
U.  S.  445;  note  in  8  L.  R.  A.  (N.  S.)  362. 

2  Connolly  v.  Union  Sewer  Pipe  Co.  (1902)  184  U.  S.  540,  562. 

3  Michigan  Cent.  R.  R.  Co.  v.  Powers  (1906)  201  U.  S.  245. 
*  Coulter  v.  Louisville  &  N.  R.  R.  Co.  (1905)  196  U.  S.  599. 
s  State  R.  R.  Tax  Cases  (1875)  92  U.  S.  575. 

6  Pacific  Exp.  Co.  v.  Seibert  (1892)  142  U.  S.  339. 

7  King  v.  Mullins  (1898)  171  U.  S.  404,  435. 

8  Toyota  v.  Hawaii  (1913)  226  U.  S.  184.  » (1909)  179  U.  S.  89. 


§  28 1  EQUAL  PROTECTION  601 

on  the  statute  books  for  many  years. I  In  recent  years  they 
have  come  into  general  use  on  this  side  of  the  Atlantic. 
Such  a  tax  is  not  generally  treated  as  one  on  vested  property, 
but  as  a  tax  on  the  privilege  of  inheriting  or  of  transmitting 
property. 2  As  such  it  is  generally  held  not  to  fall  within  the 
provisions  contained  in  some  state  constitutions  that  taxes 
on  property  shall  be  uniform  and  in  proportion  to  valuation. 3 
In  Magoun  v.  Illinois  Trust  &  Savings  Bank*  an  Illinois 
inheritance  tax  was  attacked  as  unconstitutional  which 
imposed  a  tax  of  one  per  cent,  upon  any  excess  over  $20,000 
going  to  lineal  descendants,  two  per  cent,  upon  any  excess 
over  $2,000  going  to  collateral  heirs,  and  which  imposed 
different  taxes  upon  other  persons  receiving  property  by 
inheritance  according  to  the  amounts  received.  The  court 
held  that  the  two  bases  for  classification  in  this  statute — 
relationship  and  the  amount  received — were  reasonable  and 
that  the  statute  was,  therefore,  not  open  to  attack  as  deny- 
ing equal  protection.5 

Income  taxes  are  not  new  in  American  law  but  they  have 
come  into  much  wider  use  in  the  last  few  years.  That  there 
is  nothing  in  the  Federal  Constitution  to  prevent  a  State's 
adopting  such  method  of  taxation  is  quite  clear. 

"...  That  the  State,  from  whose  laws  property  and 
business  and  industry  derive  the  protection  and  security 

'  Magoun  v.  Illinois  T.  &  S.  Bank  (1898)  170  U.  S.  283,  287. 

2  United  States  v.  Perkins  (1896)  163  U.  S.  625;  Magoun  v.  Illinois 
T.  &  S.  Bank  (1898)  170  U.  S.  283.  It  is  frequently  suggested  that  since 
the  transmission  or  inheritance  of  property  is  only  a  privilege  it  may  be 
entirely  taken  away.  See  note  in  9  L.  R.  A.  (N.  S.)  121-123. 

J  Magoun  v.  Illinois  T.  &  S.  Bank  (1898)  170  U.  S.  283.  In  this  opin- 
ion the  state  decisions  will  be  found,  both  those  which  are  in  accord,  and 
the  few  which  take  the  opposite  view. 

4  (1898)  170  U.  S.  283. 

s  See  also  Plummer  v.  Coler  (1900)  178  U.  S.  115;  Campbell  ».  Califor- 
nia (1906)  200  U.  S.  87;  Beers  v.  Glynn  (1909)  21 1  U.  S.  477.  In  Keeney 
v.  New  York  (1912)  222  U.  S.  525,  it  was  held  that  a  State  may  impose 
a  graduated  tax  on  transfers  of  personal  property  by  instrument  taking 
effect  on  the  grantor's  death  without  violating  the  equal  protection 
clause. 


602       THE  AMERICAN  CONSTITUTION     §  281 

without  which  production  and  gainful  occupation  would 
be  impossible,  is  debarred  from  exalting  a  share  of  those 
gains  in  the  form  of  income  taxes  for  the  support  of  the 
government,  is  a  proposition  so  wholly  inconsistent  with 
fundamental  principles  as  to  be  refuted  by  its  mere  state- 
ment. That  it  may  tax  the  land  but  not  the  crop,  the 
tree  but  not  the  fruit,  the  mine  or  well  but  not  the  product, 
the  business  but  not  the  profit  derived  from  it,  is  wholly 
inadmissible. 

"Income  taxes  are  a  recognized  method  of  distributing 
the  burden  of  government,  favored  because  requiring 
contributions  from  those  who  realize  current  pecuniary 
benefits  under  the  protection  of  the  government,  and 
because  the  tax  may  be  readily  proportioned  to  their 
ability  to  pay.  Taxes  of  this  character  were  imposed  by 
several  of  the  States  at  or  shortly  after  the  adoption  of  the 
Federal  Constitution."1 

The  statute  in  question  provided  for  a  progressive  income 
tax.  No  question  was  raised  in  the  case  with  regard  to  this 
feature  of  the  statute,  but  the  language  quoted  above  clearly 
shows  approval  of  it.  Such  taxes  have  generally  been 
upheld  by  state  courts.2  The  Supreme  Court,  however, 
has  declared  that  taxes  on  incomes  from  real  estate  and  from 
invested  personal  property  are  in  effect  taxes  on  property, 
while  taxes  on  income  from  "  professions,  trades,  employ- 
ments, and  vocations"  are  in  the  nature  of  excise  taxes.3 
It  would  seem,  therefore,  that  in  States  whose  constitutions 
require  that  taxes  on  property  be  uniform  and  in  proportion 
to  valuation,  a  distinction  might  be  drawn  between  the 
validity  of  these  two  classes  of  income  taxes.  A  nonresident 
may  be  taxed  by  a  State  on  the  income  which  accrues  to  him 
within  the  State,  but  to  deny  to  a  citizen  of  another  State 
the  exemptions  which  are  granted  to  its  own  citizens  is 

1  Shaffer  v.  Carter  (1920)  252  U.  S.  37,  50.    See  also  Travis  v.  Yale  & 
Towne  Mfg.  Co.  (1920)  252  U.  S.  60. 

2  See  notes  in  27  L.  R.  A.  (N.  S.}  864  and  L.  R.  A.  1915  B  569. 

3  Pollack  v.  Farmers'  L.  &  T.  Co.  (1895)  157  U.  S.  429,  on  rehearing 
158  U.  S.  601 ;  Brushaber  v.  Union  Pac.  Co.  (1916)  240  U.  S.  I,  15. 


§  282  EQUAL  PROTECTION  603 

unconstitutional. x  The  Supreme  Court  has  also  held  that 
a  state  statute  which  taxes  all  of  the  income  of  a  domestic 
corporation  derived  from  business  done  outside  of  the  State 
and  business  done  within  it,  while  exempting  entirely  the 
income  derived  from  outside  the  State  by  domestic  corpor- 
ations which  do  no  local  business  is  contrary  to  the  equal 
protection  clause,  because  an  unreasonable  classification. 2 

§282.  Classification  Under  the  Police  Power.  The  Su- 
preme Court  early  used  the  following  very  instructive  lan- 
guage as  to  the  police  power  and  equal  protection3: 

"But  neither  the  [fourteenth]  amendment — broad  and 
comprehensive  as  it  is — nor  any  other  amendment,  was 
designed  to  interfere  with  the  power  of  the  State,  some- 
times termed  its  police  power,  to  prescribe  regulations  to 
promote  the  health,  peace,  morals,  education,  and  good 
order  of  the  people,  and  to  legislate  so  as  to  increase  the 
industries  of  the  State,  develop  its  resources,  and  add 
to  its  wealth  and  prosperity.  From  the  very  necessities 
of  society,  legislation  of  a  special  character,  having  these 
objects  in  view,  must  often  be  had  in  certain  districts, 
such  as  for  draining  marshes  and  for  irrigating  arid  plains. 
Special  burdens  are  often  necessary  for  general  benefits — 
for  supplying  water,  preventing  fires,  lighting  districts, 
cleaning  streets,  opening  parks,  and  many  other  objects. 
Regulations  for  these  purposes  may  press  with  more  or  less 
weight  upon  one  than  upon  another,  but  they  are  designed 
not  to  impose  unequal  and  unnecessary  restrictions  upon 
any  one,  but  to  promote  with  as  little  individual  incon- 
venience as  possible,  the  general  good.  Though,  in  many 
respects,  necessarily  special  in  their  character,  they  do  not 
furnish  just  ground  of  complaint  if  they  operate  alike 
upon  all  persons  and  property  under  the  same  circum- 
stances and  conditions.  Class  legislation,  discriminating 
against  some  and  favoring  others,  is  prohibited,  but  legis- 
lation which,  in  carrying  out  a  public  purpose,  is  limited 

1  Travis  v.  Yale  &  Towne  Mfg.  Co.  (1920)  252  U.  S.  60. 

2  Royster  Guano  Co.  v.  Virginia  (1920)  253  U.  S.  412. 

3  Barbier  v.  Connolly  (1885)  113  U.  S.  27,  31. 


604       THE  AMERICAN  CONSTITUTION     §  282 

in  its  application,  if  within  the  sphere  of  its  operation  it 
affects  alike  all  persons  similarly  situated,  is  not  within 
the  amendment." 

There  is  no  doubt  that  for  purposes  appropriate  to  the  police 
power  reasonable  classifications  may  be  created  by  legis- 
lation without  conflicting  with  the  guaranty  of  equal  pro- 
tection in  the  Fourteenth  Amendment.  The  Supreme 
Court  has  asserted,  however,  that  a  wider  discretion  is 
allowed  in  classification  for  taxation  than  is  allowed  in  the 
exercise  of  the  police  power,1  and  this  is  reasonable.  Since 
a  State  may  tax  all  it  should  not  be  held  to  be  beyond  its 
power  to  tax  a  part,  as  long  as  the  line  which  is  drawn  is  not 
entirely  arbitrary  and  without  reason.  But  regulation  is 
only  justifiable  when  such  regulation  is  required  for  the 
protection  of  some  public  interest,  and,  therefore,  when 
some  are  regulated  and  others  are  not,  some  reasonable 
justification  for  such  difference  should  be  perceivable  based 
upon  considerations  of  public  welfare.  The  number  of  cases 
which  have  involved  the  right  to  classify  under  the  police 
power  is  very  great, 2  but  the  attitude  of  the  Supreme  Court 
towards  the  problems  involved  can  be  made  clear  by 
a  consideration  of  comparatively  few  decisions. 

Naturally  in  considering  the  exercise  of  the  police  power 
one  thinks  first  of  legislation  for  the  protection  of  health, 
safety,  morals,  and  good  order.  Of  course  in  our  criminal 
law,  developed  for  the  protection  of  life,  and  of  the  safety 
of  person  and  property,  as  well  as  for  the  protection  of  mor- 
als and  good  order,  we  have  a  great  amount  of  classification 
as  to  acts  and  penalties  whose  constitutionality  is  accepted 
without  question.  However,  in  Finley  v.  California3  a 
statute  was  attacked  as  denying  equal  protection  which 
provided  that  life  convicts  alone  should  be  punished  with 
death  for  an  assault  with  a  deadly  weapon.  The  court 
upheld  the  statute  on  the  ground  that  life  convicts  form  a 
class  by  themselves,  upon  whom  no  longer  term  of  imprison- 

1  Connolly  v.  Union  Sewer  Pipe  Co.  (1902)  184  U.  S.  540. 

2  See  12  Corpus  Juris  1 157  et  seg_.;  6  R.  C.  L.  sees.  364  et  seq. 
a  (191 1)222  U.S.  28. 


§  282  EQUAL  PROTECTION  605 

ment  could  be  imposed. x  Night  work  in  laundries  may  be 
forbidden,  though  allowed  in  other  businesses,  on  the  ground 
of  protecting  the  community  against  fire.2  Regulations 
may  be  imposed  upon  the  dealing  in,  or  the  use  of  intoxicat- 
ing liquor  which  are  not  imposed  upon  other  products3; 
and  persons  selling  milk  may  be  required  to  take  out  licenses 
and  to  conform  to  special  sanitary  provisions.4  Fertilizer 
plants  may  be  kept  out  of  cities, s  and  so  may  cow  stables 
and  dairies, 6  and  brick  making  may  be  restricted  to  desig- 
nated areas. 7  The  emission  of  dense  smoke  in  cities  may  be 
made  a  nuisance.8  A  city  may  be  divided  into  commercial 
and  residential  districts,  and  different  heights  may  be  fixed 
for  buildings  in  the  two  districts,  provided  these  differences 
are  reasonable.9  The  sale  of  preservatives  containing 
boric  acid  may  be  prohibited,10  and  the  manufacture  and 
sale  of  oleomargarine  may  be  put  under  different  restriction 
from  the  manufacture  and  sale  of  butter. 1 1  Some  forms  of 
speculation  which  have  been  found  particularly  harmful, 
such  as  the  sale  of  stock  on  margin,  may  be  prohibited  with- 
out prohibiting  all  transactions  in  which  speculation  is 
possible.12  Similarly  it  has  been  held  lawful  to  forbid  the 
keeping  of  billiard  and  pool  tables  for  the  general  use  of 
the  public  while  allowing  hotels  to  keep  such  tables  for  the 
use  of  their  guests. I3  It  is  clearly  reasonable  to  prohibit  the 
employment  of  children  under  sixteen  years  of  age  in  hazard- 

I  See  McDonald  v.  Massachusetts  (1901)  180  U.  S.  311,  upholding  a 
statute  imposing  heavier  penalty  upon  habitual  criminals. 

3  Barbier  v.  Connolly  (1885)  113  U.  S.  27. 

3  Mugler  v.  Kansas  (1887)  123  U.  S.  623. 

•»  New  York  v.  Van  De  Carr  (1905)  199  U.  S.  552. 

s  Fertilizer  Co.  v.  Hyde  Park  (1878)  97  U.  S.  659. 

6  Fischer  v.  St.  Louis  (1903)  194  U.  S.  361. 

?Hadecheck  v.  Sebastian  (1915)  239  U.  S.  394. 

8  Northwestern  Laundry  Co.  v.  Des  Moines  (1916)  239  U.  S.  486. 

9  Welch  v.  Swasey  (1909)  214  U.  S.  91. 

10  Price  v.  Illinois  (1915)  238  U.  S.  446. 

II  Powell  v.  Pennsylvania  (1888)  127  U.  S.  678;  Capital  City  Dairy  Co. 
v.  Ohio  (1902)  183  U.  S.  238. 

12  Otis  v.  Parker  (1903)  187  U.  S.  606. 

'»  Murphy  v.  California  (1912)  225  U.  S.  623. 


6o6       THE  AMERICAN  CONSTITUTION     §  282 

ous  occupations,1  and  it  is  equally  constitutional  to  make 
restrictions  as  to  hours  of  work  apply  only  to  women,  when 
it  appears  that  long  working  hours  are  especially  injurious  to 
women.2  So  restrictions  upon  the  hours  of  work  for  men 
may  be  applied  to  businesses  which  are  notoriously  un- 
healthful,  though  not  applied  to  businesses  generally.3 
The  singling  out  of  mine  owners  as  a  class  upon  whom  to  put 
absolute  liability  for  defaults  of  certain  of  their  employees 
is  not  an  improper  classification  in  view  of  the  care  needed 
in  such  business. 4  In  all  of  these  cases  we  have  instances  of 
classifications  based  upon  legitimate  regard  for  the  health, 
safety,  morals,  and  good  order  of  the  community. 

The  likelihood  of  friction  between  the  white  and  colored 
races  has  led  to  legislation  for  their  separation,  some  of 
which  has  been  upheld,  and  some  of  which  has  not.  In 
Plessvv.  Ferguson5  a  statute  was  attacked  as  denying  equal 
protection  which  required  separate  but  equal  railroad 
accommodations  for  white  and  colored  passengers.  This 
regulation  was  held  to  be  reasonable.  Similarly  statutory 
provisions  for  the  separation  of  white  and  colored  children 
in  schools  are  upheld. 6  The  Supreme  Court  of  the  United 
States  has,  however,  absolutely  set  its  face  against  the 
segregation  of  the  races  into  separate  areas,  as  attempted 
in  several  of  the  southern  States,  even  when  identical  restric- 
tions are  put  upon  both  races. 7  It  seems  doubtful  if  in  any 
case  of  the  separation  of  the  races,  where  there  is  identity 
of  treatment,  there  could  be  said  to  be  a  denial  of  the  equal 
protection  of  the  laws. 8  The  question  would  seem  rather  to 

1  Sturges  &  Burn  Mfg.  Co.  v.  Beauchamp  (1913)  231  U.  S.  320. 

2  Muller  v.  Oregon  (1908)  208  U.  S.  412. 

3  Holden  v.  Hardy  (1898)  169  U.  S.  366. 

4  Wilmington  Star  Mining  Co.  v.  Fulton  (1907)  205  U.  S.  60. 
5(1896)  163  U.  S.  537. 

6  Ibid.,  544;  People  v.  School  Board  (1900)  161  N.  Y.  598;  13  Ann. 
Cases  343. 

'Buchanan  v.  Warley  (1917)  245  U.  S.  60. 

8  But  if  the  facilities  are  not  substantially  equal  there  is  a  denial  of  the 
equal  protection  of  the  laws.  Maddox  v.  Neal.  (1885)  45  Ark.  121; 
Williams  v.  Board  of  Education  (1908)  79  Kan.  202. 


§  282  EQUAL  PROTECTION  607 

be  whether  there  has  been  a  deprivation  of  liberty  or  prop- 
erty without  due  process.  The  last  Supreme  Court  case  cited, 
where  segregation  was  condemned,  was  decided  upon  the 
ground  that  the  property  owner  was  deprived  of  his  pro- 
perty without  due  process. I 

All  rate  regulation  of  public  utilities,  and  of  businesses 
which  are  of  such  importance  to  the  public  as  to  justify  this 
exercise  of  the  police  power,  involves  classification  on  the 
basis  of  the  particular  business  to  be  regulated.  Clearly  it  is 
reasonable,  and  therefore  constitutional,  to  apply  different 
systems  of  rates  to  railroads,  grain  elevators,  telephone 
companies,  telegraph  companies,  gas  plants,  water  works, 
and  to  the  various  other  businesses  whose  rates  may  be 
fixed  by  the  State.2  Furthermore  different  rates  may  be 
applied  to  different  utilities  of  the  same  kind  if  there  is  a 
difference  of  circumstances  which  justifies  the  distinction 
made3;  or  some  businesses  may  be  regulated  and  others  of 
the  same  kind  left  unregulated,  if  there  is  reasonable  ground 
for  this  discrimination.4  The  Supreme  Court  has  estab- 
lished, however,  that  there  may  be  a  judicial  review  with 
regard  to  the  reasonableness  of  legislative  rates.  This  has 
sometimes  been  put  on  the  ground  that  the  establishment  of 
rates  which  are  unreasonably  low  constitutes  an  unreason- 
able discrimination  between  those  who  are  regulated  and 
those  who  are  not,  and  so  results  in  a  denial  of  the  equal 
protection  of  the  laws. 5  But  as  has  been  pointed  out,  the 
right  to  review  legislative  rates  has  been  more  generally 
upheld  under  the  due  process  clause. 6 

We  have  seen  that  under  the  due  process  clause  a  very 
wide  discretion  is  allowed  to  state  governments  in  limiting 
liberty  of  action  and  the  use  of  property  in  the  exercise 

1  See  the  discussion  in  sec.  270. 

a  For  a  consideration  of  rate  regulation  see  sec.  272. 

3  Covington  &  L.  Turnpike  Co.  v.  Sandford  (1896)  164  U.  S.  578;  12 
Corpus  Juris  1169. 

4  Munn  v.  Illinois  (1876)  94  U.  S.  113;  Budd  v.  New  York  (1892)  143 
U.  S.  517. 

s  Reagan  v.  Farmers'  L.  &  T.  Co.   (1894)   154  U.  S.  362. 
6  Sec.  272. 


6o8       THE  AMERICAN  CONSTITUTION     §  282 

of  the  police  power  in  order  to  protect  the  public  against 
fraud,  oppression,  loss,  and  waste.1  It  is  also  well  estab- 
lished that  when  a  State  legislates  for  these  purposes  it 
may  make  classifications  of  those  persons  or  businesses 
which  shall  and  of  those  which  shall  not  fall  under  the 
statutory  provisions,  and  that  if  there  is  any  reasonable 
basis  for  such  classifications  they  do  not  constitute  a  denial 
of  the  equal  protection  of  the  laws.  Many  of  the  cases 
considered  in  connection  with  due  process  exemplify  this 
proposition  with  regard  to  equal  protection.2  A  rather 
extreme  example  of  classification  which  was  upheld  as  an 
exercise  of  the  police  power  to  prevent  fraud  is  found  in  the 
statute  which  was  involved  in  Armour  &  Company  v.  North 
Dakota, 3  which  singled  out  lard,  and  required  that  it  should 
not  be  sold  otherwise  than  in  bulk  unless  put  up  in  one, 
three,  or  five  pound  packages,  net  weight  or  in  packages  of 
some  multiple  of  these  weights.  The  court  thought  that  in 
view  of  the  fact  that  the  law  was  drafted  by  the  state  pure 
food  commission  after  several  years'  experience  and  obser- 
vation it  could  be  assumed  that  there  was  reason  for  singling 
out  the  sale  of  lard  for  the  regulation  in  question. 

The  Supreme  Court  upheld  a  Missouri  statute  which  pro- 
hibited combinations  of  manufacturers  and  vendors  of  goods 
to  lessen  competition  and  to  regulate  prices,  but  which  did  not 
prohibit  combinations  of  workers  or  of  purchasers.4  It  is 
quite  clear  that  the  public  may  suffer  oppression  from 
combinations  of  manufacturers  and  vendors  which  will 
not  result  from  combinations  of  workers  or  of  purchasers. 

'  Sec.  273. 

a  For  instance:  Lemieuxv.  Young  (1909)  211  U.  S.  489  ("sale  in  bulk" 
law  upheld  though  it  applied  only  to  retailers) ;  Hall  v .  Geiger- Jones  Co- 
(1917)  242  U.  S.  539  ("blue  sky"  laws  requiring  dealers  in  securities  to 
obtain  licenses);  Noble  State  Bank  v.  Haskell  (1911)  219  U.  S.  104 
(statute  requiring  banks  to  contribute  to  a  depositors'  guaranty  fund); 
Shallenberger  v.  First  St.  Bk.  of  Holstein  (1911)  219  U.  S.  114  (statute 
requiring  those  doing  a  banking  business  to  incorporate). 

3  (1916)  240  U.  S.  510. 

*  International  Harvester  Co.  of  America  v.  Missouri  (1914)  234  U.  S. 
199. 


§  282  EQUAL  PROTECTION  609 

It  does  not  follow  that  the  latter  might  not  be  forbidden,  but 
if  the  problems  are  different  the  classification  made  by  the 
statute  is  not  unreasonable.  On  the  other  hand  the 
Supreme  Court  held  unconstitutional  an  Illinois  statute 
against  combinations  for  the  restriction  of  competition, 
which  expressly  excepted  from  its  operation  agricultural 
products  or  live  stock  in  the  hands  of  the  producer  or  raiser. l 
The  majority  of  the  court  could  see  no  reasonable  ground 
for  the  distinction  which  was  made,  and  therefore  declared 
that  the  statute  denied  the  equal  protection  of  the  law.  The 
court  in  this  case  would  seem  to  have  taken  a  rather  less 
liberal  attitude  towards  the  power  of  the  States  to  make 
classifications  under  the  police  power  than  has  usually  been 
its  wont,  in  view  of  the  fact  that  the  dangers  from  combin- 
ations in  commercial  centers  are  obviously  greater  than 
among  those  engaged  in  agricultural  pursuits. 2  In  Bacon  v. 
Waller z  it  was  held  that  the  State  of  Idaho  had  not  gone 
beyond  its  constitutional  power  in  providing  that  damages 
may  be  recovered  from  one  who  permits  his  sheep  to  graze 
on  the  public  domain  within  two  miles  of  a  dwelling  house. 
This  was  held  not  to  be  an  unreasonable  discrimination  in 
favor  of  owners  of  cattle  in  view  of  the  fact  that  cattle  will 
not  graze  on  land  where  sheep  have  been  pastured. 

The  New  York  statute  considered  in  Lindsley  v.  Natural 
Carbonic  Gas  Company4  was  directed  against  thewasteof  the 
mineral  waters  at  Saratoga  Springs.  Its  prohibitions 
applied  to  those  pumping  from  wells  bored  in  the  rock,  but 
not  to  those  pumping  from  other  wells,  and  they  applied  to 
those  pumping  the  water  for  the  purpose  of  extracting  and 
vending  the  gas,  but  not  to  those  pumping  the  water  for 
other  purposes.  The  court  was  not  satisfied  that  this  classi- 
fication was  unreasonble  in  view  of  the  facts  that  wells  not 
bored  in  the  rock  did  not  seem  to  draw  water  from  the 
common  reservoir,  and  that  there  is  a  greater  temptation 
to  wastefulness  when  the  water  is  pumped  for  the  purpose  of 

1  Connolly  v.  Union  Sewer  Pipe  Co.  (1902)  184  U.  S.  540. 

3  Ibid.,  Justice  McKenna's  dissenting  opinion. 

3  (1907)  204  U.  S.  311.  4  (1911)  220  U.  S.  61. 


6io       THE  AMERICAN  CONSTITUTION     §  282 

extracting  gas  than  when  it  is  pumped  for  other 
purposes. 

Several  statutes  have  come  before  the  Supreme  Court  of  the 
United  States  which  have,  in  connection  with  designated 
businesses,  provided  for  the  imposition  of  special  penalties 
in  cases  where  claims  have  been  made  and  not  satisfied,  and 
where  such  claims  have  afterwards  been  successfully  prose- 
cuted to  judgment.  Where  the  only  apparent  purpose  of 
such  a  statute  was  to  compel  the  prompt  payment  of  small 
claims  by  railroads,  the  statute  was  held  unconstitutional, 
on  the  ground  that  no  greater  duty  rested  upon  railroads  to 
pay  small  claims  against  them  than  rests  upon  other  busi- 
nesses. x  On  the  other  hand  it  was  held  constitutional  to 
impose  a  penalty  in  favor  of  plaintiffs  recovering  their  full 
claims  in  suits  against  common  carriers  for  damage  to  prop- 
erty while  in  their  possession,  provided  the  claim  is  not 
settled  within  forty  days  after  presentment. 2  This  statute 
was  upheld  on  the  ground  that  common  carriers  are  under 
a  special  duty  of  care  with  regard  to  goods  in  their  possession, 
and  a  carrier  is  in  a  much  better  position  than  the  shipper 
to  know  what  has  happened  to  such  goods,  and  what  its 
liability  is. 3 

Legislation  with  regard  to  employment,  such  as  we  have 
discussed  in  connection  with  the  due  process  clause, 4  gener- 
ally involves  classification  for  the  purpose  of  regulation. 
So  we  have  seen  that  hours  of  work  and  minimum  wage 

1  Gulf  C..&  S.  F.  Ry.  v.  Ellis  (1897)  165  U.  S.  150. 

3  Seaboard  Air  Line  Ry.  v.  Seegers  (1907)  207  U.  S.  73. 

3  See  also  Fidelity  Mut.  Life  Assn.  v.  Mettler  (1902)  185  U.  S.  308 
(where  a  Texas  statute  was  upheld  which  directs  that  life  and  health 
insurance  companies,  who  shall  default  in  payment  of  their  policies, 
shall  pay  twelve  per  cent,  damages,  together  with  reasonable  attorney's 
fees,  though  no  similar  provision  is  made  applicable  to  other  kinds  of 
insurance  companies  or  to  mutual  benefit  associations) ;  Missouri  Pac. 
Ry.  Co.  v.  Larabee  (1914)  234  U.S.  459  (upholding  a  statute  allowing 
an  attorney's  fee  in  a  mandamus  proceeding  against  a  party  refusing 
to  obey  a  peremptory  writ  though  a  similar  provision  is  not  made 
in  behalf  of  the  successful  defendant,  or  in  behalf  of  parties  in  other 
proceedings). 

4  Sec.  274. 


§282  EQUAL  PROTECTION  611 

legislation  applicable  to  women  and  not  to  men  has  been 
held  constitutional. T  Similarly  labor  legislation  applicable 
to  children  and  not  to  adults  constitutes  legal  classification. 2 
Also  classification  of  those  employed  in  particularly  un- 
healthful  callings  for  the  purpose  of  protective  legislation, 3 
and  the  classification  of  those  working  in  mills,  factories,  and 
manufacturing  establishments,  as  distinct  from  those 
engaged  in  mercantile  or  agricultural  pursuits,  has  been 
upheld^;  So  in  workmen's  compensation  acts,  which  we 
have  seen  do  not  contravene  due  process,5  there  may 
be  classification  of  those  businesses  which  do  and  of  those 
which  do  not  fall  within  the  purview  of  the  act.6  It  has 
been  held  constitutional  to  except  banks  and  certain  loan 
companies  from  the  provisions  of  a  statute  which  invalidates 
as  against  the  employer  the  assignment  of  future  wages 
without  the  consent  of  the  wage-earner's  wife,  and  certain 
other  formalities,7  and  to  apply  the  prohibition  against 
employers  issuing  orders  for  the  payment  of  labor  not  pur- 
porting to  be  payable  in  money  to  those  engaged  in  mining 
and  manufacturing  only. 8 

1  Muller  v.  Oregon  (1908)  208  U.  S.  412;  Stettler  v.  O'Hara  (1917)  243 
U.  S.  629. 

2  Sturges  v.  Beauchamp  (1914)  231  U.  S.  320. 

3  Holden  v.  Hardy  (1898)  169  U.  S.  366. 

*  Bunting  v.  Oregon  (1917)  243  U.  S.  426. 
s  Sec.  274. 

6  Jeffrey  Mfg.  Co.  v.  Blagg  (1915)  235  U.  S.  571. 

7  Mutual  Loan  Co.  v.  Martell  (1911)  222  U.  S.  225. 

8  International  Harvester  Co.  v.  Missouri  (1914)  234  U.  S.  199. 


CHAPTER  XXXIV 

THE  SUFFRAGE  AND  PROHIBITION  AMENDMENTS 

§283.  The  Fifteenth  Amendment.  The  Fifteenth 
Amendment,  which  was  proposed  in  1869  and  ratified  the 
next  year,  provides  as  follows : 

1 '  i .  The  right  of  the  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United  States  or 
by  any  of  the  States  on  account  of  race,  color  or  previous 
condition  of  servitude. 

"2.  The  Congress  shall  have  power  to  enforce  the  pro- 
visions of  this  article  by  appropriate  legislation. ' ' 

In  the  first  case  to  come  before  the  Supreme  Court  of  the 
United  States  under  the  reconstruction  amendments,  Jus- 
tice Miller  made  this  statement1: 

"...  A  few  years'  experience  satisfied  the  thoughtful 
men  who  had  been  the  authors  of  the  other  two  amend- 
ments that,  notwithstanding  the  restraints  of  those  arti- 
cles on  the  States,  and  the  laws  passed  under  the  additional 
powers  granted  to  Congress,  these  were  inadequate  to  the 
protection  of  life,  liberty  and  property,  without  which 
freedom  to  the  slave  was  no  boon.  They  were  in  all  those 
States  denied  the  right  of  suffrage.  The  laws  were  ad- 
ministered by  the  white  man  alone.  It  was  urged  that  a 
race  of  men  distinctively  marked  as  was  the  negro,  living 
in  the  midst  of  another  and  dominant  race,  could  never 
be  fully  secured  in  their  person  and  their  property  without 
the  right  of  suffrage. 

"Hence  the  fifteenth  amendment,  .  .  .  The  negro 
having  by  the  fourteenth  amendment,  been  declared 
1  Slaughter  House  Cases  (1872)  16  Wallace  36,  71. 

612 


§  283       SUFFRAGE  AND  PROHIBITION         613 

to  be  a  citizen  of  the  United  States,  is  thus  made  a  voter 
in  every  State  of  the  Union." 

We  have  here  a  good  statement  of  the  general  purpose  of 
the  Fifteenth  Amendment,  but  the  statement  that  it  made 
the  negro  ' '  a  voter  in  every  State  of  the  Union ' '  is  mislead- 
ing. The  determination  of  the  qualifications  for  voters 
for  federal  as  well  as  state  officers  is  still  left,  as  it  was  by 
the  original  terms  of  the  Constitution,  to  the  determination 
of  the  States,1  with  the  one  qualification  only  that  such 
determination  shall  not  be  based  upon  lines  of  race,  color, 
or  previous  condition  of  servitude.  It  has,  therefore,  been 
held  that  it  is  entirely  constitutional  for  a  State  to  establish 
a  literacy  test  for  its  electors,  which  applies  to  all  persons, 
there  being  in  such  provision  no  discrimination  against 
colored  persons,  though  it  may  in  fact  apply  to  more  mem- 
bers of  that  race  than  of  the  white  race. 2  But  where  a  state 
statute  or  constitutional  provision  excepts  from  the  literacy 
test  any  "person  who  was  on  January  I,  1866,  or  any  time 
prior  thereto,  entitled  to  vote  under  any  form  of  government, 
or  who  at  that  time  resided  in  some  foreign  nation,"  and 
any  "lineal  descendant  of  such  person,"  it  is  uncon- 
stitutional, since  its  only  discernible  purpose  and  effect  is 
to  disfranchise  former  black  slaves  and  their  'descendants, 
contrary  to  the  Fifteenth  Amendment. 3 

The  Fifteenth  Amendment  resembles  the  Fourteenth  in 
that  it  is  not  directed  against  the  action  of  individuals.  So 
an  attempt  by  federal  legislation  to  punish  private  persons 
who  conspire  to  prevent  negroes  from  voting  is  not  within 

1  By  Article  I,  section  2  of  the  Constitution  of  the  United  States,  and 
by  the  Seventeenth  Amendment  it  is  provided  that  electors  for  Repre- 
sentatives and  Senators  "shall  have  the  qualifications  requisite  for 
electors  of  the  most  numerous  branch  of  the  State  Legislature, "  and  by 
Article  II,  section  I  it  is  provided  that  presidential  electors  shall  be  ap- 
pointed in  each  State  in  such  manner  as  the  Legislature  thereof  may 
direct." 

2  Williams  v.  Mississippi  (1898)  170  U.  S.  214. 

sGuinn  v.  United  States  (1915)  238  U.  S.  347;  Myers  v.  Anderson 
(1915)  238  U.  S.  368. 


614       THE  AMERICAN  CONSTITUTION     §  284 

the  power  granted  by  the  amendment. x  It  is  to  be  noticed 
that  the  Fifteenth  Amendment,  unlike  the  Fourteenth,  is  a 
limitation  upon  the  National  Government  as  well  as  upon 
the  States. 

§284.  The  Nineteenth  Amendment.  Upon  the  adoption 
of  the  Fourteenth  Amendment,  declaring  that  "all  persons 
born  or  naturalized  in  the  United  States  and  subject  to  the 
jurisdiction  thereof,  are  citizens  of  the  United  States  and 
of  the  State  wherein  they  reside, ' '  and  that  ' '  no  State  shall 
make  or  enforce  any  law  which  shall  abridge  the  privileges 
or  immunities  of  citizens  of  the  United  States,"  it  was 
contended  that  the  right  to  vote  is  a  privilege  of  citizenship 
and  that  women  could  not,  therefore,  be  deprived  of  the 
privilege  of  the  ballot.2  The  Supreme  Court  held  that 
women  were  citizens  before  as  well  as  after  the  adoption  of 
the  amendment,  but  that  the  right  to  vote  was  not  a 
privilege  inhering  in  citizenship,  and  that  the  Fourteenth 
Amendment  did  not  add  to  existing  privileges.  Gradually, 
however,  the  suffrage  was  obtained  by  women  in  State  after 
State,  until  finally  they  found  themselves  politically  strong 
enough  to  induce  Congress  to  propose  to  the  States  the 
Nineteenth  Amendment,  which  provides  that, 

"i.  The  right  of  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United  States  or  by 
any  State  on  account  of  sex. 

"2.  Congress  shall  have  power,  by  appropriate  legis- 
lation, to  enforce  the  provisions  of  this  article. ' ' 3 

It  will  be  noticed  that  the  Nineteenth  Amendment  follows 
the  language  of  the  Fifteenth,  substituting  only  the  word 
"sex"  for  the  words  "race,  color,  or  previous  condition  of 
servitude."  All  that  has  been  said  about  the  Fifteenth 
Amendment,  therefore,  applies  equally  to  the  Nineteenth. 

1  James  v.  Bowman  (1903)  190  U.  S.  127.    See  also  United  States  v. 
Reese  (1875)  92  U.  S.  214. 

2  Minor  v.  Happersett  (1874)  2I  Wallace  162. 

3  The  amendment  was  proposed  in  1919  and  was  declared  by  the 
Secretary  of  State  to  be  in  effect  on  August  26,  1920. 


§  285       SUFFRAGE  AND  PROHIBITION         615 

The  question  of  the  constitutionality  of  this  amendment 
is  now  before  the  Supreme  Court.  It  is  believed  that  the 
amendment  will  be  upheld. 

§285.  The  Eighteenth  Amendment.  This  amendment 
was  proposed  by  Congress  in  1917,  and  was  declared  by  the 
Secretary  of  State  to  be  in  effect  January  29,  I9I9-1  Its 
provisions  are  as  follows : 

"i.  After  one  year  from  the  ratification  of  this  article 
the  manufacture,  sale,  or  transportation  of  intoxicating 
liquors  within,  the  importation  thereof  into,  or  the  expor- 
tation thereof  from  the  United  States  and  all  territory, 
subject  to  the  jurisdiction  thereof  for  beverage  purposes  is 
hereby  prohibited. 

"2.  The  Congress  and  the  several  States  shall  have 
concurrent  power  to  enforce  this  article  by  appropriate 
legislation. 

"3.  This  article  shall  be  inoperative  unless  it  shall  have 
been  ratified  as  an  amendment  to  the  Constitution  by  the 
Legislatures  of  the  several  States,  as  provided  in  the 
Constitution,  within  seven  years  from  the  date  of  the  sub- 
mission hereof  to  the  States  by  the  Congress." 

It  will  be  noticed  that  section  two  of  this  amendment  differs 
from  corresponding  sections  in  the  Thirteenth,  Fourteenth, 
Fifteenth,  and  Nineteenth  Amendments  in  that  those 
amendments  vest  in  Congress  sole  authority  of  enforcement, 
while  the  Eighteenth  Amendment  gives  to  ''Congress  and 
the  several  States  concurrent  power  to  enforce  this  article 
by  appropriate  legislation."  In  upholding  the  amendment 
and  the  Volstead  Act  passed  by  Congress  under  its  author- 
ity, the  Supreme  Court  laid  down  among  others  the  follow- 
ing propositions2 : 

"7.  The  second  section  of  the  amendment — the  one 
declaring  'Congress  and  the  several  States  shall  have 
concurrent  power  to  enforce  this  article  by  appropriate 

s  With  regard  to  the  attack  upon  the  validity  of  this  amendment  see 
sec.  22. 

3  National  Prohibition  Cases  (1920)  253  U.  S.  350,  387. 


616       THE  AMERICAN  CONSTITUTION     §  285 

legislation' — does  not  enable  Congress  or  the  several 
States  to  defeat  or  thwart  the  prohibition,  but  only  to 
enforce  it  by  appropriate  means. 

"8.  The  words '  concurrent  power'  in  that  section  do  not 
mean  joint  power,  or  require  that  legislation  thereunder 
by  Congress,  to  be  effective,  shall  be  approved  or  sanc- 
tioned by  the  several  States  or  any  of  them ;  nor  do  they 
mean  that  the  power  to  enforce  is  divided  between  Con- 
gress and  the  several  States  along  the  lines  which  separate 
or  distinguish  foreign  and  interstate  commerce  from 
intrastate  affairs. 

"9.  The  power  confided  to  Congress  by  that  section, 
while  not  exclusive,  is  territorially  coextensive  with  the 
prohibition  of  the  first  section,  embraces  manufacture 
and  other  intrastate  transactions  as  well  as  importation, 
exportation,  and  interstate  traffic,  and  is  in  no  wise 
dependent  on  or  affected  by  action  or  inaction  on  the  part 
of  the  several  States  or  any  of  them. ' ' 

From  this  it  is  clear  that  Congress  may  legislate,  con- 
sistently with  the  amendment,  on  the  subject  of  intoxicants 
for  the  whole  country,  and  that  any  inconsistent  state 
legislation  would  be  annuled  by  such  federal  enactments. 
On  the  other  hand  it  seems  safe  to  say  that  any  state  legis- 
lation with  regard  to  intoxicants,  which  would  before  the 
Eighteenth  Amendment  have  been  valid  under  the  police 
power  of  the  States,  is  now  valid  under  the  amendment,  as 
long  as  it  does  not  conflict  with  the  provisions  of  the  amend- 
ment or  with  national  legislation  passed  in  pursuance  of  it. 
Such  legislation  may  have  been  passed  before  or  after  the 
adoption  of  the  amendment,  and  may  have  been  passed  for 
the  purpose  of  enforcing  the  amendment  or  for  the  purpose 
of  enacting  a  stricter  rule  of  prohibition  than  is  required  by 
that  addition  to  the  fundamental  law. z 

1  Commonwealth  v.  Nickerson  (1920,  Mass.)  128  N.  E.  273;  United 
States  v.  Nickerson  (1920)  268  Fed.  864;  Ex  parte  Crookshank  (1921) 
269  Fed.  980;  notes  in  19  Michigan  L.  Rev.,  329,  6  Cornell  L.  Quar.,  443, 
10  A.  L.  R.,  1587. 


APPENDIX 

[CONSTITUTION 

OF  THE 
UNITED   STATES   OF  AMERICA]1 

WE  THE  PEOPLE  of  the  United  States,  in  Order  to  form  a 
more  perfect  Union,  establish  Justice,  insure  domestic 
Tranquillity,  provide  for  the  common  defence,  promote 
the  general  Welfare,  and  secure  the  Blessings  of  Liberty 
to  ourselves  and  our  Posterity,  do  ordain  and  establish 
this  CONSTITUTION  for  the  United  States  of  America. 

ARTICLE   I 

SECTION  i.  All  legislative  Powers  herein  granted  shall 
be  vested  in  a  Congress  of  the  United  States,  which  shall 
consist  of  a  Senate  and  House  of  Representatives. 

SECTION  2.  [i.]  The  House  of  Representatives  shall  be 
composed  of  Members  chosen  every  second  Year  by  the 
People  of  the  several  States,  and  the  Electors  in  each  State 
shall  have  the  Qualifications  requisite  for  Electors  of  the 
most  numerous  Branch  of  the  State  Legislature. 

1  This  copy  of  the  Constitution  (through  Amendment  XVII),  to- 
gether with  the  footnotes,  is  reprinted  from  the  appendix  to  Hall's  Cases 
on  Constitutional  Law,  with  the  courteous  permission  of  the  publishers, 
the  West  Publishing  Company.  American  History  Leaflet  No.  8,  from 
which  the  text  of  the  Constitution  was  largely  taken  by  Dean  Hall, 
was  prepared  by  Professor  Albert  B.  Hart  and  Professor  Edward 
Channing  of  Havard,  and  is  published  by  Simmons-Peckham  Co., 
Inc.  The  authors  and  publishers  of  the  Leaflet  have  also  consented  to 
the  use  of  the  text  of  the  Constitution  in  the  form  in  which  it  is  here 
published.  The  words  and  figures  enclosed  in  brackets  do  not  appear 
in  the  original  manuscripts,  and  are  inserted  for  convenience  of 
reference. 

617 


618  APPENDIX 

[2.]  No  Person  shall  be  a  Representative  who  shall  not 
have  attained  to  the  Age  of  twenty -five  Years,  and  been 
seven  Years  a  Citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  Inhabitant  of  that  State  in  which 
he  shall  be  chosen. 

[3.]  Representatives  and  direct  Taxes  shall  be  appor- 
tioned among  the  several  States  which  may  be  included 
within  this  Union,  according  to  their  respective  Numbers, 
which  shall  be  determined  by  adding  to  the  whole  Number 
of  free  Persons,  including  those  bound  to  Service  for  a  Term 
of  Years,  and  excluding  Indians  not  taxed,  three  fifths  of  all 
other  Persons.1  The  actual  Enumeration  shall  be  made 
within  three  Years  after  the  first  Meeting  of  the  Congress 
of  the  United  States,  and  within  every  subsequent  Term  of 
ten  Years,  in  such  Manner  as  they  shall  by  Law  direct. 
The  Number  of  Representatives  shall  not  exceed  one  for 
every  thirty  Thousand,  but  each  State  shall  have  at  Least 
one  Representative;  and  until  such  enumeration  shall  be 
made,  the  State  of  New  Hampshire  shall  be  entitled  to  chuse 
three,  Massachusetts  eight,  Rhode-Island  and  Providence 
Plantations  one,  Connecticut  five,  New  York  six,  New  Jer- 
sey four,  Pennsylvania  eight,  Delaware  one,  Maryland  six, 
Virginia  ten,  North  Carolina  five,  South  Carolina  five,  and 
Georgia  three. 

[4.]  When  vacancies  happen  in  the  Representation  from 
any  State,  the  Executive  Authority  thereof  shall  issue 
Writs  of  Election  to  fill  such  Vacancies. 

[5.]  The  House  of  Representatives  shall  chuse  their 
Speaker  and  other  Officers ;  and  shall  have  the  sole  Power  of 
Impeachment. 

SECTION  3.  [i.]  The  Senate  of  the  United  States  shall 
be  composed  of  two  Senators  from  each  State,  chosen  by  the 
Legislature  thereof,  for  six  Years;  and  each  Senator  shall 
have  one  Vote.  [Superseded  by  Amend.  XVII.] 

[2.]  Immediately  after  they  shall  be  assembled  in  Con- 
sequence of  the  first  Election,  they  shall  be  divided  as 
equally  as  may  be  into  three  classes.  The  Seats  of  the 

1  See  Amend.  XIV,  sec.  2. 


THE  CONSTITUTION  619 

Senators  of  the  first  Class  shall  be  vacated  at  the  Expiration 
of  the  second  Year,  of  the  second  Class  at  the  Expiration 
of  the  fourth  Year,  and  of  the  third  Class  at  the  Expiration 
of  the  sixth  Year,  so  that  one  third  may  be  chosen  every 
second  Year;  and  if  Vacancies  happen  by  Resignation,  or 
otherwise,  during  the  Recess  of  the  Legislature  of  any 
State,  the  Executive  thereof  may  make  temporary  Appoint- 
ment until  the  next  Meeting  of  the  Legislature,  which  shall 
then  fill  such  Vacancies. 

[3.]  No  Person  shall  be  a  Senator  who  shall  not  have 
attained  to  the  Age  of  thirty  Years,  and  been  nine  Years  a 
Citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  Inhabitant  of  that  State  for  which  he  shall  be 
chosen. 

[4.]  The  Vice  President  of  the  United  States  shall  be 
President  of  the  Senate,  but  shall  have  no  Vote,  unless  they 
are  equally  divided. 

[5.]  The  Senate  shall  chuse  their  other  Officers,  and  also 
a  President  pro  tempore,  in  the  Absence  of  the  Vice  Presi- 
dent, or  when  he  shall  exercise  the  Office  of  President  of 
the  United  States. 

[6.]  The  Senate  shall  have  the  sole  Power  to  try  all 
Impeachments.  When  sitting  for  that  purpose,  they  shall 
be  on  Oath  or  Affirmation.  When  the  President  of  the 
United  States  is  tried,  the  Chief  Justice  shall  preside:  And 
no  Person  shall  be  convicted  without  the  Concurrence  of 
two  thirds  of  the  Members  present. 

[7.]  Judgment  in  Cases  of  Impeachment  shall  not  extend 
further  than  to  removal  from  Office,  and  disqualification  to 
hold  and  enjoy  any  Office  of  honor,  Trust  or  Profit  under 
the  United  States :  but  the  Party  convicted  shall  neverthe- 
less be  liable  and  subject  to  Indictment,  Trial,  Judgment 
and  Punishment,  according  to  Law. 

SECTION  4.  [i.]  The  Times,  Places  and  Manner  of 
holding  Elections  for  Senators  and  Representatives,  shall  be 
prescribed  in  each  State  by  the  Legislature  thereof ;  but  the 
Congress  may  at  any  time  by  Law  make  or  alter  such 
Regulations,  except  as  to  the  Places  of  chusing  Senators. 


620  APPENDIX 

[2.]  The  Congress  shall  assemble  at  least  once  in  every 
Year,  and  such  meeting  shall  be  on  the  first  Monday  in 
December,  unless  they  shall  by  Law  appoint  a  different  Day. 

SECTION  5.  [i.]  Each  House  shall  be  the  Judge  of  the 
Elections,  Returns  and  Qualifications  of  its  own  Members, 
and  a  Majority  of  each  shall  constitute  a  Quorum  to  do 
Business;  but  a  smaller  Number  may  adjourn  from  day 
to  day,  and  may  be  authorized  to  compel  the  attendance  of 
absent  Members,  in  such  Manner,  and  under  such  Penalties 
as  each  House  may  provide. 

[2.]  Each  House  may  determine  the  Rules  of  its  Pro- 
ceedings, punish  its  Members  for  Disorderly  Behaviour, 
and,  with  the  Concurrence  of  two  thirds,  expel  a  Member. 

[3.]  Each  House  shall  keep  a  Journal  of  its  Proceedings, 
and  from  time  to  time  publish  the  same,  excepting  such 
Parts  as  may  in  their  Judgment  require  Secrecy;  and  the 
Yeas  and  Nays  of  the  Members  of  either  House  on  any 
question  shall,  at  the  Desire  of  one  fifth  of  those  Present,  be 
entered  on  the  Journal. 

[4.]  Neither  House,  during  the  Session  of  Congress,  shall, 
without  the  Consent  of  the  other,  adjourn  for  more  than 
three  days,  nor  to  any  other  Place  than  that  in  which  the 
two  Houses  shall  be  sitting. 

SECTION  6.  [i.]  The  Senators  and  Representatives 
shall  receive  a  Compensation  for  their  Services,  to  be  ascer- 
tained by  Law,  and  paid  out  of  the  Treasury  of  the  United 
States.  They  shall  in  all  Cases,  except  Treason,  Felony 
and  Breach  of  the  Peace,  be  privileged  from  Arrest  during 
their  Attendance  at  the  same ;  and  for  any  Speech  or  Debate 
in  either  House,  they  shall  not  be  questioned  in  any  other 
Place. 

[2.]  No  Senator  or  Representative  shall,  during  the  Time 
for  which  he  was  elected,  be  appointed  to  any  civil  Office 
under  the  Authority  of  the  United  States,  which  shall  have 
been  created,  or  the  Emoluments  whereof  shall  have  been 
encreased  during  such  time;  and  no  Person  holding  any 
Office  under  the  United  States,  shall  be  a  member  of  either 
House  during  his  Continuance  in  Office. 


THE  CONSTITUTION  621 

SECTION  7.  [i.]  All  Bills  for  raising  Revenue  shall 
originate  in  the  House  of  Representatives;  but  the  Senate 
may  propose  or  concur  with  Amendments  as  on  other  Bills. 
[2.]  Every  Bill  which  shall  have  passed  the  House  of 
Representatives  and  the  Senate  shall,  before  it  becomes  a 
Law,  be  presented  to  the  President  of  the  United  States; 
If  he  approve  he  shall  sign  it,  but  if  not  he  shall  return  it, 
with  his  Objections  to  that  House  in  which  it  shall  have 
originated,  who  shall  enter  the  Objections  at  large  on  their 
Journal,  and  proceed  to  reconsider  it.  If  after  such  Recon- 
sideration two  thirds  of  that  House  shall  agree  to  pass  the 
Bill,  it  shall  be  sent,  together  with  the  Objections,  to  the 
other  House,  by  which  it  shall  likewise  be  reconsidered, 
and  if  approved  by  two  thirds  of  that  House,  it  shall  become 
a  Law.  But  in  all  such  Cases  the  Votes  of  both  Houses 
shall  be  determined  by  Yeas  and  Nays,  and  the  Names  of 
the  Persons  voting  for  and  against  the  Bill  shall  be  entered 
on  the  Journal  of  each  House  respectively.  If  any  Bill 
shall  not  be  returned  by  the  President  within  ten  Days 
(Sundays  excepted)  after  it  shall  have  been  presented  to 
him,  the  same  shall  be  a  Law,  in  like  Manner  as  if  he  had 
signed  it,  unless  the  Congress  by  their  Adjournment  pre- 
vent its  Return,  in  which  Case  it  shall  not  be  a  Law. 

[3.]  Every  Order,  Resolution,  or  Vote  to  which  the  Con- 
currence of  the  Senate  and  House  of  Representatives  may 
be  necessary  (except  on  a  question  of  Adjournment)  shall 
be  presented  to  the  President  of  the  United  States;  and 
before  the  same  shall  take  Effect,  shall  be  approved  by  him, 
or  being  disapproved  by  him,  shall  be  repassed  by  two 
thirds  of  the  Senate  and  House  of  Representatives,  accord- 
ing to  the  Rules  and  Limitations  prescribed  in  the  Case  of 
a  Bill. 

SECTION  8.  The  Congress  shall  have  Power  [i.]  To  lay 
and  collect  Taxes,  Duties,  Imposts  and  Excises,  to  pay  the 
Debts  and  provide  for  the  common  Defence  and  general 
Welfare  of  the  United  States;  but  all  Duties,  Imposts  and 
Excises  shall  be  uniform  throughout  the  United  States; 

[2.]    To  borrow  Money  on  the  credit  of  the  United  States; 


622  APPENDIX 

[3.]  To  regulate  Commerce  with  foreign  Nations,  and 
among  the  several  States,  and  with  the  Indian  Tribes; 

[4.]  To  establish  an  uniform  Rule  of  Naturalization, 
and  uniform  Laws  on  the  subject  of  Bankruptcies  through- 
out the  United  States; 

[5.]  To  coin  Money,  regulate  the  Value  thereof,  and  of 
foreign  coin,  and  fix  the  Standard  of  Weights  and  Measures; 

[6.]  To  provide  for  the  Punishment  of  counterfeiting 
the  Securities  and  current  Coin  of  the  United  States ; 

[7.]     To  establish  Post  Offices  and  post  Roads; 

[8.]  To  promote  the  Progress  of  Science  and  useful  Arts, 
by  securing  for  limited  Times  to  Authors  and  Inventors  the 
exclusive  Right  to  their  respective  Writings  and  Discoveries ; 

[9.]  To  constitute  Tribunals  inferior  to  the  supreme 
Court; 

[10.]  To  define  and  punish  Piracies  and  Felonies  com- 
mitted on  the  high  Seas,  and  Offences  against  the  Law  of 
Nations ; 

[n.]  To  declare  War,  grant  Letters  of  Marque  and 
Reprisal,  and  make  Rules  concerning  Captures  on  Land  and 
Water; 

[12.]  To  raise  and  support  Armies,  but  no  Appropriation 
of  Money  to  that  Use  shall  be  for  a  longer  Term  than  two 
Years ; 

[13.]     To  Provide  and  maintain  a  Navy; 

[14.]  To  make  Rules  for  the  Government  and  Regu- 
lation of  the  land  and  naval  Forces ; 

[15.]  To  provide  for  calling  forth  the  Militia  to  execute 
the  Laws  of  the  Union,  suppress  Insurrections  and  repel 
Invasions ; 

[16.]  To  provide  for  organizing,  arming,  and  disciplin- 
ing, the  Militia,  and  for  governing  such  Part  of  them  as 
may  be  employed  in  the  Service  of  the  United  States,  reserv- 
ing to  the  States  respectively,  the  Appointment  of  the 
Officers,  and  the  Authority  of  training  the  Militia  according 
to  the  discipline  prescribed  by  Congress ; 

[17.]  To  exercise  exclusive  Legislation  in  all  Cases 
whatsoever,  over  such  District  (not  exceeding  ten  Miles 


THE  CONSTITUTION  623 

square)  as  may,  by  Cession  of  particular  States,  and  the 
Acceptance  of  Congress,  become  the  Seat  of  the  Govern- 
ment of  the  United  States,  and  to  exercise  like  Authority 
over  all  Places  purchased  by  the  Consent  of  the  Legislature 
of  the  State  in  which  the  same  shall  be,  for  the  Erection  of 
Forts,  Magazines,  Arsenals,  dock  Yards,  and  other  needful 
Buildings : — And 

[18.]  To  make  all  Laws  which  shall  be  necessary  and 
proper  for  carrying  into  Execution  the  foregoing  Powers, 
and  all  other  Powers  vested  by  this  Constitution  in  the 
Government  of  the  United  States,  or  in  any  Department  or 
Officer  thereof. 

SECTION  9.  [i.]  The  Migration  or  Importation  of  such 
Persons  as  any  of  the  States  now  existing  shall  think  proper 
to  admit,  shall  not  be  prohibited  by  the  Congress  prior  to 
the  Year  one  thousand  eight  hundred  and  eight,  but  a  Tax 
or  duty  may  be  imposed  on  such  Importation,  not  exceeding 
ten  dollars  for  each  Person. 

[2.]  The  Privilege  of  the  Writ  of  Habeas  Corpus  shall 
not  be  suspended,  unless  when  in  Cases  of  Rebellion  or 
Invasion  the  public  Safety  may  require  it. 

[3.]  No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be 
passed. 

[4.]  No  Capitation,  or  other  direct  Tax  shall  be  laid 
unless  in  Proportion  to  the  Census  or  Enumeration  herein 
before  directed  to  be  taken. 

[5.]  No  Tax  or  Duty  shall  be  laid  on  Articles  exported 
from  any  State. 

[6.]  No  Preference  shall  be  given  by  any  Regulation  of 
Commerce  or  Revenue  to  the  Ports  of  one  State  over  those 
of  another;  nor  shall  Vessels  bound  to,  or  from,  one  State,  be 
obliged  to  enter,  clear,  or  pay  Duties  in  another. 

[7.]  No  Money  shall  be  drawn  from  the  Treasury,  but  in 
Consequence  of  Appropriations  made  by  Law ;  and  a  regular 
Statement  and  Account  of  the  Receipts  and  Expenditures 
of  all  public  Money  shall  be  published  from  time  to  time. 

[8.]  No  Title  of  Nobility  shall  be  granted  by  the  United 
States :  And  no  Person  holding  any  Office  of  Profit  or  Trust 


624  APPENDIX 

under  them,  shall,  without  the  Consent  of  the  Congress, 
accept  of  any  Present,  Emolument,  Office,  or  Title,  of  any 
kind  whatever,  from  any  King,  Prince,  or  foreign  State. 

SECTION  10.  [i.]  No  State  shall  enter  into  any  Treaty, 
Alliance,  or  Confederation;  grant  Letters  of  Marque  and 
Reprisal;  coin  Money;  emit  Bills  of  Credit;  make  any  Thing 
but  gold  and  silver  Coin  a  Tender  in  Payment  of  Debts; 
pass  any  Bill  of  attainder,  ex  post  facto  Law,  or  Law  im- 
pairing the  Obligation  of  Contracts,  or  grant  any  Title  of 
Nobility. 

[2.]  No  State  shall,  without  the  Consent  of  the  Congress, 
lay  any  Imposts  or  Duties  on  Imports  or  Exports,  except 
what  may  be  absolutely  necessary  for  executing  its  inspec- 
tion Laws :  and  the  net  Produce  of  all  Duties  and  Imposts, 
laid  by  any  State  on  Imports  or  Exports,  shall  be  for  the 
Use  of  the  Treasury  of  the  United  States ;  and  all  such  Laws 
shall  be  subject  to  the  Revision  and  Controul  of  the  Con- 
gress. 

[3.]  No  State  shall,  without  the  Consent  of  Congress, 
lay  any  Duty  of  Tonnage,  keep  Troops,  or  Ships  of  War  in 
time  of  Peace,  enter  into  any  Agreement  or  Compact  with 
another  State,  or  with  a  foreign  Power,  or  engage  in  War, 
unless  actually  invaded,  or  in  such  imminent  Danger  as  will 
not  admit  of  delay. 

ARTICLE   II 

SECTION  i .  [  i .  ]  The  Executive  Power  shall  be  vested  in 
a  President  of  the  United  States  of  America.  He  shall  hold 
his  Office  during  the  Term  of  four  Years,  and,  together 
with  the  Vice  President,  chosen  for  the  same  Term,  be 
elected,  as  follows : 

[2.]  Each  State  shall  appoint,  in  such  Manner  as  the 
Legislature  thereof  may  direct,  a  Number  of  Electors,  equal 
to  the  whole  Number  of  Senators  and  Representatives  to 
which  the  State  may  be  entitled  in  the  Congress:  but  no 
Senator  or  Representative,  or  Person  holding  an  Office  of 
Trust  or  Profit  under  the  United  States,  shall  be  appointed 
an  Elector. 


THE  CONSTITUTION  625 

[3.]  The  Electors  shall  meet  in  their  respective  States, 
and  vote  by  Ballot  for  two  Persons,  of  whom  one  at  least 
shall  not  be  an  Inhabitant  of  the  same  State  with  them- 
selves. And  they  shall  make  a  List  of  all  the  Persons  voted 
for,  and  of  the  Number  of  Votes  for  each;  which  List  they 
shall  sign  and  certify,  and  transmit  sealed  to  the  Seat  of  the 
Government  of  the  United  States,  directed  to  the  President 
of  the  Senate.  The  President  of  the  Senate  shall,  in  the 
Presence  of  the  Senate  and  House  of  Representatives,  open 
all  the  Certificates,  and  the  Votes  shall  then  be  counted. 
The  Person  having  the  greatest  number  of  Votes  shall  be 
the  President,  if  such  Number  be  a  Majority  of  the  whole 
number  of  Electors  appointed ;  and  if  there  be  more  than  one 
who  have  such  Majority,  and  have  an  equal  Number  of 
Votes,  then  the  House  of  Representatives  shall  immediately 
chuse  by  Ballot  one  of  them  for  President;  and  if  no  Person 
have  a  Majority,  then  from  the  five  highest  on  the  List  the 
said  House  shall  in  like  Manner  chuse  the  President.  But 
in  chusing  the  President,  the  Votes  shall  be  taken  by  States, 
the  Representation  from  each  State  having  one  Vote;  A 
quorum  for  this  Purpose  shall  consist  of  a  Member  or  Mem- 
bers from  two  thirds  of  the  States,  and  a  Majority  of  all  the 
States  shall  be  necessary  to  a  Choice.  In  every  Case,  after 
the  Choice  of  the  President,  the  Person  having  the  greatest 
Number  of  Votes  of  the  Electors  shall  be  the  Vice  President. 
But  if  there  should  remain  two  or  more  who  have  equal 
Votes,  the  Senate  shall  chuse  from  them  by  Ballot  the  Vice 
President.  x 

[4.  ]  The  Congress  may  determine  the  Time  of  chusing  the 
Electors,  and  the  Day  on  which  they  shall  give  their  Votes; 
which  Day  shall  be  the  same  throughout  the  United  States. 

[5.]  No  Person  except  a  natural  born  Citizen,  or  a  Citi- 
zen of  the  United  States,  at  the  time  of  the  Adoption  of  this 
Constitution,  shall  be  eligible  to  the  Office  of  President; 
neither  shall  any  Person  be  eligible  to  that  Office  who  shall 
not  have  attained  to  the  Age  of  thirty  five  Years,  and  been 
fourteen  Years  a  Resident  within  the  United  States. 

1  This  paragraph  was  superseded  by  Amend.  XII. 
40 


626  APPENDIX 

[6.]  In  Case  of  the  Removal  of  the  President  from  Office, 
or  of  his  Death,  Resignation,  or  Inability  to  discharge  the 
Powers  and  Duties  of  the  said  Office,  the  Same  shall  devolve 
on  the  Vice  President,  and  the  Congress  may  by  Law  provide 
for  the  Case  of  Removal,  Death,  Resignation,  or  Inability, 
both  of  the  President  and  Vice  President,  declaring  what 
Officer  shall  then  act  as  President,  and  such  Officer  shall  act 
accordingly,  until  the  Disability  be  removed,  or  a  Presi- 
dent shall  be  elected. 

[7.]  The  President  shall,  at  stated  Times,  receive  for 
his  Services,  a  Compensation,  which  shall  neither  be 
encreased  nor  diminished  during  the  Period  for  which  he 
shall  have  been  elected,  and  he  shall  not  receive  within  that 
Period  any  other  Emolument  from  the  United  States,  or  any 
of  them. 

[8.]  Before  he  enter  on  the  Execution  of  his  Office,  he 
shall  take  the  following  Oath  or  Affirmation: — "I  do 
solemnly  swear  (or  affirm)  that  I  will  faithfully  execute  the 
Office  of  President  of  the  United  States,  and  will  to  the  best 
of  my  Ability,  preserve,  protect  and  defend  the  Constitution 
of  the  United  States." 

SECTION  2.  [i.]  The  President  shall  be  Commander  in 
Chief  of  the  Army  and  Navy  of  the  United  States,  and  of  the 
Militia  of  the  several  States,  when  called  into  the  actual 
Service  of  the  United  States;  he  may  require  the  Opinion,  in 
writing,  of  the  principal  Officer  in  each  of  the  executive 
Departments,  upon  any  Subject  relating  to  the  Duties  of 
their  respective  Offices,  and  he  shall  have  Power  to  grant 
Reprieves  and  Pardons  for  Offences  against  the  United 
States,  except  in  Cases  of  Impeachment. 

[2.]  He  shall  have  Power,  by  and  with  the  Advice  and 
Consent  of  the  Senate,  to  make  Treaties,  provided  two  thirds 
of  the  Senators  present  concur ;  and  he  shall  nominate,  and 
by  and  with  the  Advice  and  Consent  of  the  Senate,  shall 
appoint  Ambassadors,  other  public  Ministers  and  Consuls, 
Judges  of  the  supreme  Court,  and  all  other  Officers  of  the 
United  States,  whose  Appointments  are  not  herein  other- 
wise provided  for,  and  which  shall  be  established  by  Law; 


THE  CONSTITUTION  627 

but  the  Congress  may  by  Law  vest  the  Appointment  of  such 
inferior  Officers,  as  they  think  proper,  in  the  President 
alone,  in  the  Courts  of  Law,  or  in  the  Heads  of  Depart- 
ments. 

[3.]  The  President  shall  have  Power  to  fill  up  all  Vacan- 
cies that  may  happen  during  the  Recess  of  the  Senate,  by 
granting  Commissions  which  shall  expire  at  the  End  of  their 
next  Session. 

SECTION  3.  He  shall  from  time  to  time  give  to  the  Con- 
gress Information  of  the  State  of  the  Union,  and  recommend 
to  their  Consideration  such  Measures  as  he  shall  judge 
necessary  and  expedient;  he  may,  on  extraordinary  Occa- 
sions, convene  both  Houses,  or  either  of  them,  and  in  Case  of 
Disagreement  between  them,  with  Respect  to  the  Time  of 
Adjournment,  he  may  adjourn  them  to  such  Time  as  he 
shall  think  proper;  he  shall  receive  Ambassadors  and  other 
public  Ministers ;  he  shall  take  Care  that  the  Laws  be  faith- 
fully executed,  and  shall  Commission  all  the  Officers  of  the 
United  States. 

SECTION  4.  The  President,  Vice  President  and  all  civil 
Officers  of  the  United  States,  shall  be  removed  from  Office 
on  Impeachment  for,  and  Conviction  of,  Treason,  Bribery, 
or  other  high  Crimes  and  Misdemeanors. 

ARTICLE   III 

SECTION  i.  The  judicial  Power  of  the  United  States, 
shall  be  vested  in  one  supreme  Court,  and  in  such  inferior 
Courts  as  the  Congress  may  from  time  to  time  ordain  and 
establish.  The  Judges,  both  of  the  supreme  and  inferior 
Courts,  shall  hold  their  Offices  during  good  Behaviour,  and 
shall,  at  stated  Times,  receive  for  their  Services,  a  Compen- 
sation, which  shall  not  be  diminished  during  their  Con- 
tinuance in  Office. 

SECTION  2.  [i.]  The  judicial  Power  shall  extend  to  all 
Cases,  in  Law  and  Equity,  arising  under  this  Constitution, 
the  Laws  of  the  United  States,  and  Treaties  made,  or  which 
shall  be  made,  under  their  Authority ; — to  all  Cases  affecting 


628  APPENDIX 

Ambassadors,  other  public  Ministers  and  Consuls; — to  all 
Cases  of  admiralty  and  maritime  Jurisdiction; — to  Contro- 
versies to  which  the  United  States  shall  be  a  Party; — to 
Controversies  between  two  or  more  States; — between  a 
State  and  Citizens  of  another  State;1 — between  Citizens  of 
different  States, — between  Citizens  of  the  same  State  claim- 
ing Lands  under  Grants  of  different  States,  and  between  a 
State,  or  the  Citizens  thereof,  and  foreign  States,  Citizens  or 
Subjects. 

[2.]  In  all  Cases  affecting  Ambassadors,  other  public 
Ministers  and  Consuls,  and  those  in  which  a  State  shall  be 
Party,  the  supreme  Court  shall  have  original  Jurisdiction. 
In  all  the  other  Cases  before  mentioned,  the  supreme  Court 
shall  have  appellate  Jurisdiction,  both  as  to  Law  and  Fact, 
with  such  exceptions,  and  under  such  Regulations  as  the 
Congress  shall  make. 

[3.]  The  Trial  of  all  Crimes,  except  in  Cases  of  Impeach- 
ment, shall  be  by  Jury;  and  such  Trial  shall  be  held  in  the 
State  where  the  said  Crimes  shall  have  been  committed ;  but 
when  not  committed  within  any  State,  the  Trial  shall  be  at 
such  Place  or  Places  as  the  Congress  may  by  Law  have 
directed. 

SECTION  3.  [i.]  Treason  against  the  United  States, 
shall  consist  only  in  levying  War  against  them,  or  in  adher- 
ing to  their  Enemies,  giving  them  Aid  and  Comfort.  No 
Person  shall  be  convicted  of  Treason  unless  on  the  Testi- 
mony of  two  Witnesses  to  the  same  overt  Act,  or  on  Con- 
fession in  open  Court. 

[2.]  The  Congress  shall  have  Power  to  declare  the 
Punishment  of  Treason,  but  no  Attainder  of  Treason  shall 
work  Corruption  of  Blood,  or  Forfeiture  except  during  the 
Life  of  the  Person  attainted. 

ARTICLE   IV 

SECTION  I.     Full  Faith  and  Credit   shall   be  given  in 
each  State  to  the  public  Acts,  Records,  and  judicial  Pro- 
1  See  Amend.  XI. 


THE  CONSTITUTION  629 

ceedmgs  of  every  other  State.  And  the  Congress  may  by 
general  Laws  prescribe  the  Manner  in  which  such  Acts, 
Records  and  Proceedings  shall  be  proved,  and  the  Effect 
thereof. 

SECTION  2.  [i.]  The  Citizens  of  each  State  shall  be 
entitled  to  all  Privileges  and  Immunities  of  Citizens  in  the 
several  States. 

[2.]  A  Person  charged  in  any  State  with  Treason,  Felony, 
or  other  Crime,  who  shall  flee  from  Justice,  and  be  found 
in  another  State,  shall  on  Demand  of  the  executive  Au- 
thority of  the  State  from  which  he  fled,  be  delivered  up, 
to  be  removed  to  the  State  having  jurisdiction  of  the 
Crime. 

[3.]  No  Person  held  to  Service  or  Labour  in  one  State, 
under  the  Laws  thereof,  escaping  into  another,  shall,  in 
Consequence  of  any  Law  or  Regulation  therein,  be  dis- 
charged from  such  Service  or  Labour,  but  shall  be  delivered 
up  on  Claim  of  the  Party  to  whom  such  Service  or  Labour 
may  be  due. 

SECTION  3.  [i.]  New  States  may  be  admitted  by  the 
Congress  into  this  Union ;  but  no  new  State  shall  be  formed 
or  erected  within  the  Jurisdiction  of  any  other  State; 
nor  any  State  be  formed  by  the  Junction  of  two  or  more 
States,  or  Parts  of  States,  without  the  Consent  of  the 
Legislatures  of  the  States  concerned  as  well  as  of  the 
Congress. 

[2.]  The  Congress  shall  have  Power  to  dispose  of  and 
make  all  needful  Rules  and  Regulations  respecting  the 
Territory  or  other  Property  belonging  to  the  United  States ; 
and  nothing  in  this  Constitution  shall  be  so  construed  as  to 
Prejudice  any  Claims  of  the  United  States,  or  of  any  par- 
ticular State. 

SECTION  4.  The  United  States  shall  guarantee  to  every 
State  in  this  Union  a  Republican  Form  of  Government, 
and  shall  protect  each  of  them  against  Invasion;  and  on 
Application  of  the  Legislature,  or  of  the  Executive  (when 
the  Legislature  cannot  be  convened)  against  domestic 
Violence. 


v/ 


630  APPENDIX 

ARTICLE  V 

The  Congress,  whenever  two  thirds  of  both  Houses  shall 
deem  it  necessary,  shall  propose  Amendments  to  this 
Constitution,  or,  on  the  Application  of  the  Legislatures  of 
two  thirds  of  the  several  States,  shall  call  a  Convention  for 
proposing  Amendments,  which,  in  either  Case,  shall  be 
valid  to  all  Intents  and  Purposes,  as  Part  of  this  Con- 
stitution, when  ratified  by  the  Legislatures  of  three  fourths 
of  the  several  States,  or  by  Conventions  in  three  fourths 
thereof,  as  the  one  or  the  other  Mode  of  Ratification  may  be 
proposed  by  the  Congress;  Provided  that  no  Amendment 
which  may  be  made  prior  to  the  Year  One  thousand  eight 
hundred  and  eight  shall  in  any  Manner  affect  the  first  and 
fourth  Clauses  in  the  Ninth  Section  of  the  first  Article ;  and 
that  no  State,  without  its  Consent,  shall  be  deprived  of  its 
equal  Suffrage  in  the  Senate. 

ARTICLE  VI 

[i.]  All  Debts  contracted  and  Engagements  entered 
into,  before  the  Adoption  of  this  Constitution,  shall  be  as 
valid  against  the  United  States  under  this  Constitution,  as 
under  the  Confederation. 

[2.]  This  Constitution,  and  the  Laws  of  the  United 
States  which  shall  be  made  in  Pursuance  thereof;  and  all 
Treaties  made,  or  which  shall  be  made,  under  the  Authority 
of  the  United  States,  shall  be  the  supreme  Law  of  the  Land; 
and  the  Judges  in  every  State  shall  be  bmind  thereby T  any 
Thing  in  the  Constitution  or  Laws  of  any  State  f-n -•*•*!  Pi 
r.pnt rflry  notwithstanding. 

[3 .  ]  The'  Senators  and  Representatives  before  mentioned , 
and  the  Members  of  the  several  State  Legislatures,  and  all 
executive  and  judicial  Officers,  both  of  the  United  States 
and  of  the  several  States,  shall  be  bound  by  Oath  or  Affirm- 
ation, to  support  this  Constitution;  but  no  religious  Test 
shall  ever  be  required  as  a  Qualification  to  any  Office  or 
public  Trust  under  the  United  States. 


THE  CONSTITUTION 


631 


ARTICLE   VII 

The  Ratification  of  the  Conventions  of  nine  States,  shall 
be  sufficient  for  the  Establishment  of  this  Constitution 
between  the  States  so  ratifying  the  same.1 

done  in  Convention  by  the 
Unanimous  Consent  of  the  States 
present  the  Seventeenth  Day  of 
September  in  the  Year  of  our 
Lord  one  thousand  seven  hundred 
and  Eighty  seven  and  of  the  In- 
dependence of  the  United  States 
of  America  the  Twelfth  In  Wit- 
ness whereof  We  have  hereunto 
subscribed  our  names. 

Go  WASHINGTON — 
Presidt  and  deputy  from  Virginia. 


[Note  of  the  draughtsman  as  to 
interlineations  in  the  text  of  the 
manuscript.] 
Attest 

WILLIAM  JACKSON 
Secretary 


Delaware 

GEO:  READ 

GUNNING  BEDFORD  JUN 
JOHN  DICKINSON 
RICHARD  BASSETT 
JACO:  BROOM 


New  Hampshire 
f  JOHN  LANGDON 
I  NICHOLAS  GILMAN 

Massachusetts 
("NATHANIEL  GORHAM 
\RUFUS  KING 


The  States  ratified  the  Constitution  in  the  following  order: 


delegates  on  April  28,  1788.  See  2 
Doc.  Hist.  Const.,  104,  121.) 

South  Carolina May  23,  1788 

New  Hampshire June  21,  1788 

Virginia June  26,  1788 

New  York July  26,  1788 

North  Carolina  November  21,  1789 
Rhode  Island May  29,  1790 


Delaware December    7,  1787 

Pennsylvania. .  December  12,  1787 
New  Jersey.  .  .December  18,  1787 

Georgia January    2,  1788 

Connecticut January    9,  1788 

Massachusetts.  February    6,  1788 
Maryland April  26,  1788 

(Vote  taken  on  April  26,  but 
official     ratification     signed     by 

By  an  act  of  September  13,  1788,  the  Congress  of  the  Confederation 
appointed  the  first  Wednesday  in  January  next  for  the  appointment  of 
presidential  electors  in  the  States  that  had  by  then  ratified  the  Constitu- 
tion; the  first  Wednesday  in  February  for  the  electors  to  assemble  and 
vote  for  President;  and  the  first  Wednesday  in  March  for  commencing 
proceedings  under  the  Constitution.  On  the  latter  date,  March  4,  1789, 
the  Constitution  became  legally  operative,  Owens  v.  Speed  (1820)  5 
Wheat.  420;  though  in  fact  the  House  of  Representatives  did  not  as- 
semble, for  want  of  a  quorum,  until  April  I,  and  the  Senate  not  until 
April  6;  and  President  Washington  was  not  inaugurated  until  April  30. 


632 


APPENDIX 


Maryland 

{JAMES  MCHENRY 
DAN  OF  Sx  THOS.  JENIFER 
DANL  CARROLL 

Virginia 
/JOHN  BLAIR 
I  JAMES  MADISON  JR. 

North  Carolina 

{WM.  BLOUNT 
RICHD.  DOBBS  SPAIGHT 
Hu  WILLIAMSON 

South  Carolina 

J.   RUTLEDGE 

CHARLES  COTESWORTH  PINCKNEY 
CHARLES  PINCKNEY 
PIERCE  BUTLER 

Georgia 

(  WILLIAM  FEW 
1  ABR  BALDWIN 


Connecticut 

/  WM  :  SAML.  JOHNSON 
\  ROGER  SHERMAN 

New  York 

ALEXANDER  HAMILTON 
New  Jersey 

WIL:  LIVINGSTON 
DAVID  BREARLEY 
WM:  PATERSON 
JONA:  DAYTON 

Pennsylvania 

B  FRANKLIN 
THOMAS  MIFFLIN 
ROBT  MORRIS 
GEO.  CLYMER 
THOS  FITZSIMONS 
JARED  INGERSOLL 
JAMES  WILSON 
Gouv  MORRIS 


ARTICLES  in  addition  to  and  Amendment  of  the  Con- 
stitution of  the  United  States  of  America,  proposed  by  Con- 
gress, and  ratified  by  the  Legislatures  of  the  several  States, 
pursuant  to  the  fifth  Article  of  the  original  Constitution.1 

[ARTICLE   I.]2 

Congress  shall  make  no  law  respecting  an  establishment 
of  religion,  or  prohibiting  the  free  exercise  thereof;  or  abridg- 
ing the  freedom  of  speech,  or  of  the  press;  or  the  right  of  the 

1  This  heading  appears  only  in  the  joint  resolution  submitting  the 
first  ten  amendments.    I  Stat.  971. 

In  vol.  ii  of  Amer.  Hist.  Assn.  Reports  (1896),  is  an  elaborate  essay  by 
H.  V.  Ames  upon  Proposed  Amendments  to  U.  S.  Constitution,  1789- 
1889,  which  contains  a  calendar  of  over  1,800  amendments  proposed  in 
Congress  or  the  State  Legislatures,  with  a  history  of  the  more  important 
proposals. 

2  The  first  10  amendments  were  proposed  by  Congress  on  September 
25f  1789,  when  they  passed  the  Senate  [i  Ann.  Cong,  (ist  Cong.  1st 
Sess.)  88],  having  previously  passed  the  House  on  September  24  [Id.,  913.] 


THE  CONSTITUTION  633 

people  peaceably  to  assemble,  and  to  petition  the  Govern- 
ment for  a  redress  of  grievances. 

[ARTICLE   II.] 

A  well  regulated  Militia,  being  necessary  to  the  security 
of  a  free  State,  the  right  of  the  people  to  keep  and  bear 
Arms,  shall  not  be  infringed. 

[ARTICLE   III.] 

No  Soldier  shall,  in  time  of  peace  be  quartered  in  any 
house,  without  the  consent  of  the  Owner,  nor  in  time  of  war, 
but  in  a  manner  prescribed  by  law. 

[ARTICLE   IV.] 

The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated,  and  no  Warrants  shall 
issue,  but  upon  probable  cause,  supported  by  Oath  or  affirm- 
ation, and  particularly  describing  the  place  to  be  searched, 
and  the  persons  or  things  to  be  seized. 

[ARTICLE  V.] 

No  person  shall  be  held  to  answer  for  a  capital,  or  other- 
wise  infamous  crime,  unless  on  a  presentment  or  indictment 
of  a  Grand  Jury,  except  iffcasSii  arising  in  Hie  land  or  naval 
forces,  Of  ill  the  Militia,  when  in  actual  service  in  time  of 
War  or  public  danger;  nor  shall  any  person  be  subject  for  the 
same  offence  to  be  twice  put  in  jeopardy  of  life  or  limb;  nor 

They  appear  officially  in  I  Stat.  97.  The  eleventh  State  (Virginia), 
there  then  being  14  in  all,  ratified  them  on  December  15,  1791  [2  Doc. 
Hist.  Const:,  386-90]. 

Two  other  amendments  proposed  at  the  same  time  failed  of  ratifica- 
tion. One  of  these  concerned  the  ratio  of  representation  to  population 
in  the  House,  and  the  other  forbade  any  change  in  the  compensation  of 
Senators  and  Representatives  to  become  effective  until  after  an  inter- 
vening election  of  Representatives.  The  first  was  ratified  by  ten  States 
and  the  second  by  six  States  [2  Doc.  Hist.  Const.,  325-390]. 


634  APPENDIX 

shall  be  compelled  in  any  criminal  case  tojbe  a  witness 
against  himself,  nor  be  deprived  of  life,  liberty,  or  property, 
ithout  due  process  of  law:  nor  shall  private  property  be 
taken  for  public  use,  without  just  compensatJQn. 

[ARTICLE  VI.] 

In  all  criminal  prosecutions  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of 
the  State  and  district  wherein  the  crime  shall  have  been 
committed,  which  district  shall  have  been  previously  ascer- 
tained by  law,  and  to  be  informed  of  the  nature  and  cause 
of  the  accusation;  to  be  confronted  with  the  witnesses  against 
him;  to  have  compulsory  process  for  obtaining  witnesses 
in  his  favor,  and  to  have  the  Assistance  of  Counsel  for  his 
defence. 

[ARTICLE  VII.] 

In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall 
be  preserved,  and  no  fact  tried  by  a  jury  shall  be  otherwise 
re-examined  in  any  Court  of  the  United  States,  than  accord- 
ing to  the  rules  of  the  common  law. 

[ARTICLE   VIII.] 

Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

[ARTICLE   IX.] 

The  enumeration  in  the  Constitution,  of  certain  rights, 
shall  not  be  construed  to  deny  or  disparage  others  retained 
by  the  people. 

[ARTICLE  X.] 

i  The  powers  not  delegated  to  the  United  States  by  the 
1 1  Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved 
I JJDO  the  States  respectively,  or  to  the  people. 


THE  CONSTITUTION  635 

[ARTICLE   XL]1 

The  Judicial  power  of  th?.  TTnit.p.H  State*;  shall  not  be 
construed  to  extend  tn  any  suit  in  law  or  equity,  commenced 
or  prosecuted  against  one  of  the  United  States  by  Citizens 
of  another  State,  or  by  Citizens  or  Subjects  of  any  Foreign 
State. 

[ARTICLE  XII.]2 

The  Electors  shall  meet  in  their  respective  states,  and 
vote  by  ballot  for  President  and  Vice-President,  one  of 
whom,  at  least,  shall  not  be  an  inhabitant  of  the  same  state 
with  themselves ;  they  shall  name  in  their  ballots  the  person 
voted  for  as  President,  and  in  distinct  ballots  the  person 
voted  for  as  Vice-President,  and  they  shall  make  distinct 
lists  of  all  persons  voted  for  as  President,  and  of  all  persons 
voted  for  as  Vice-President,  and  of  the  number  of  votes  for 
each,  which  lists  they  shall  sign  and  certify,  and  transmit 
sealed  to  the  seat  of  the  government  of  the  United  States, 
directed  to  the  President  of  the  Senate; — The  President  of 

1  The  Eleventh  Amendment  was  proposed  by  Congress  on  March  4, 
1794,  when  it  passed  the  House  [4  Ann.  Cong.  (3rd  Cong,  ist  Sess.) 
477],  having  previously  passed  the  Senate  on  January  14  [Id.,  30,  31].  It 
appears  officially  in  I  Stat.  402.  The  ratifications  of  but  six  States 
appear  among  the  official  records  printed  in  2  Doc.  Hist.  Const.,  392- 
407.  The  fifth  of  these  (North  Carolina)  was  on  February  7,  1795. 
Three  others  were  announced  to  Congress  in  a  message  by  President 
Washington  on  January  8,  1795  [i  Mess,  and  Papers  of  Pres.  174]. 
Rhode  Island  ratified  at  the  March  session  of  its  legislature,  1794  [R-  L 
Laws  (March,  1794)  32h  New  Hampshire  on  June  20,  1794  [N.  H.  Laws, 
1785-1796,  p.  501];  Georgia  on  November  29,  1794  [Dig.  Georgia  Laws, 
1755-1800,  p.  291];  and  Delaware  on  January  22,  1795  [2  Del.  Laws 
(Ed.  1797),  1 199,  1200].  North  Carolina  was  therefore  the  twelfth  State 
(there  then  being  15  in  all)  and  the  amendment  became  effective  on 
February  7,  1795.  On  January  8,  1798,  President  Adams  stated  in  a 
message  to  Congress  that  the  amendment  had  been  adopted  by  three- 
fourths  of  the  States  (there  being  then  16  in  all)  and  might  now  be 
declared  a  part  of  the  Constitution  [i  Mess,  and  Papers  of  Pres.  260]. 

3  The  Twelfth  Amendment  was  proposed  by  Congress  on  December 
8,  1803,  when  it  passed  the  House  [13  Ann.  Cong.  (8th  Cong,  ist  Sess.) 
775,  776],  having  previously  passed  the  Senate  on  December  2  [Id.,  209, 


636  APPENDIX 

the  Senate  shall,  in  the  presence  of  the  Senate  and  House  of 
Representatives,  open  all  the  certificates  and  the  votes 
shall  then  be  counted; — The  person  having  the  greatest 
number  of  votes  for  President,  shall  be  the  President,  if  such 
number  be  a  majority  of  the  whole  number  of  Electors 
appointed;  and  if  no  person  have  such  majority,  then  from 
the  persons  having  the  highest  numbers  not  exceeding  three 
on  the  list  of  those  voted  for  as  President,  the  House  of 
Representatives  shall  choose  immediately,  by  ballot,  the 
President.  But  in  choosing  the  President,  the  votes  shall 
be  taken  by  states,  the  representation  from  each  state  hav- 
ing one  vote;  a  quorum  for  this  purpose  shall  consist  of  a 
member  or  members  from  two-thirds  of  the  states,  and  a 
majority  of  all  the  states  shall  be  necessary  to  a  choice. 
And  if  the  House  of  Representatives  shall  not  choose  a 
President  whenever  the  right  of  choice  shall  devolve  upon 
them,  before  the  fourth  day  of  March  next  following,  then 
the  Vice-President  shall  act  as  President,  as  in  the  case  of 
the  death  or  other  constitutional  disability  of  the  President. 
— The  Person  having  the  greatest  number  of  votes  as  Vice- 
President  shall  be  the  Vice-President,  if  such  number  be  a 

210].  It  appears  officially  in  2  Stat.  306.  The  ratifications  of  but  12 
States  appear  among  the  official  records  printed  in  2  Doc.  Hist.  Const., 
411-450;  and  5  Doc.  Hist.  Const.,  480-491;  the  last  of  which  were 
Georgia  (May  19,  1804)  and  Tennessee  (July  27,  1804).  In  addition, 
Kentucky  ratified  on  December  27,  1803  [3  Littell,  Ky.  Stats.  149]. 
On  June  15,  1804,  the  New  Hampshire  Legislature  passed  an  act  ratify- 
ing the  amendment,  which  was  vetoed  by  the  governor  and  failed  to 
pass  again  by  two  thirds  vote  then  required  by  the  state  constitution 
for  the  enactment  of  laws  over  a  veto.  [Transcript  of  proceedings  in 
New  Hampshire  House  of  Representatives,  June  20,  1804,  furnished  by 
Secretary  of  State  Pearson  in  September,  1913.]  If  this  veto  was  in- 
effectvie  (see  Const,  art.  V;  and  H.  V.  Ames  in  2  Am.  Hist.  Assn.  Rep. 
1896,  297,  298),  New  Hampshire  was  the  thirteenth  State  to  ratify  and 
the  amendment  became  operative  on  June  15,  1804.  Otherwise,  Ten- 
nessee was  the  last  State  needed,  and  the  amendment  dates  from  July 
27,  1804.  On  September  25,  1804,  Secretary  of  State  Madison  in  a 
circular  letter  to  the  governors  of  the  States  declared  it  ratified  by  three 
fourths  of  the  States,  there  then  being  17  in  all  [2  Doc.  Hist.  Const.,  451, 
note]. 


THE  CONSTITUTION  637 

majority  of  the  whole  number  of  Electors  appointed,  and  if 
no  person  have  a  majority,  then  from  the  two  highest 
numbers  on  the  list,  the  Senate  shall  choose  the  Vice- 
President;  a  quorum  for  the  purpose  shall  consist  of  two- 
thirds  of  the  whole  number  of  Senators,  and  a  majority  of 
the  whole  number  shall  be  necessary  to  a  choice.  But  no 
person  constitutionally  ineligible  to  the  office  of  President 
shall  be  eligible  to  that  of  Vice-President  of  the  JtLpited 
States. 

ARTICLE  XIII.1 

•*^~  - 

SECTION  i.  Neither  slavery  nor  involuntary  servitude, 
except  as  a  punishment  for  crime  whereof  the  party  shall 
have  been  duly  convicted,  shall  exist  within  the  United 
States,  or  any  place  subject  to  their  jurisdiction. 

A  thirteenth  amendment  depriving  of  United  States  citizenship  any 
citizen  who  should  accept  any  title,  office,  or  emolument  from  a  foreign 
power,  was  proposed  by  Congress  on  May  I,  1810,  when  it  passed  the 
House  [21  Ann.  Cong,  (nth  Cong.  2d  Sess.)  2050],  having  previously 
passed  the  Senate  on  April  27  [20  Ann.  Cong,  (nth  Cong.  2d  Sess.) 
672].  It"appears  officially  in  2  Stat.  613.  It  failed  of  adoption,  being 
ratified  by  but  12  States  up  to  December  10,  1812  [2  Miscell.  Amer. 
State  Papers,  477-479;  2  Doc.  Hist.  Const.,  454-499],  there  then  being 
1 8  in  all. 

Another  thirteenth  amendment,  forbidding  any  future  amendment 
that  should  empower  Congress  to  interfere  with  the  domestic  institu- 
tions of  any  State,  was  proposed  by  Congress  on  March  2,  1861,  when  it 
passed  the  Senate  [Cong.  Globe  (36th  Cong.  2d  Sess.)  1403],  having 
previously  passed  the  House  on  February  28  [Id.t  1285].  It  appears 
officially  in  12  Stat.  251.  It  failed  of  adoption,  being  ratified  by  but 
three  States:  Ohio,  May  13,  1861  [58  Laws  Ohio,  190];  Maryland,  Janu- 
ary 10,  1862  [Laws  Maryland  (1861-62)  21];  Illinois,  February  14,  1862 
[2  Doc.  Hist.  Const.,  518]  (irregular,  because  by  convention  instead  of 
by  legislature  as  authorized  by  Congress). 

1  The  Thirteenth  Amendment  was  proposed  by  Congress  on  January 
31,  1865,  when  it  passed  the  House  [Cong.  Globe  (38th  Cong.  2d  Sess.) 
531],  having  previously  passed  the  Senate  on  April  8,  1864  [Id.t  (38th 
Cong,  ist  Sess.)  1490].  It  appears  officially  in  13  Stat.  567  under  date 
of  February  I,  1865.  The  twenty-seventh  State  (Georgia),  there  then 
being  36  in  all,  ratified  it  on  December  9, 1865  [2  Doc.  Hist.  Const.,  613]; 
and  on  December  18,  1865,  it  was  certified  by  Secretary  of  State  Seward 
to  have  become  a  part  of  the  Constitution  [13  Stat.  774].  In  making 


638  APPENDIX 

SECTION  2.     Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. * 

/    ARTICLE   XIV.2  t/ 

SECTION  i .     All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens 
^  of  the  United  States  and  of  the  State  wherein  they  reside. 

No  Siiate  shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the  United  States;_. 
nor  shall  any  State  deprive  any  person  of  life,  liberty,  .or 
property,  without  due  process_X)f  law:  nor^deny  to  any  per- 
l/sonjvithin  frs  Jurisdiction  t.Tift  pquaJ^M^p Ptfap  of  the  la^gs. 
SECTION  2.  Representatives  shall  be  apportioned  among 
the  several  States  according  to  their  respective  numbers, 
counting  the  whole  number  of  persons  in  each  State,  ex- 
cluding Indians  not  taxed.  But  when  the  right  to  vote  at 
any  election  for  the  choice  of  electors  for  President  and  Vice 
President  of  the  United  States,  Representatives  in  Congress, 

this  and  subsequent  certificates  of  like  character  the  Secretary  of  State 
has  acted  under  the  authority  of  3  Stat.  439,  c.  80,  sec.  2  (1818)  [now 
R.  S.  U.  S.  sec.  205],  which  however  attaches  no  legal  effect  to  such 
certification. 

1  In  the  original  manuscript  this  section  does  not  appear  as  a  separate 
paragraph  [2  Doc.  Hist.  Const.,  520]. 

2  The  Fourteenth  Amendment  was  proposed  by  Congress  on  June  13, 
1866,  when  it  passed  the  House  [Cong.  Globe  (39th  Cong,  ist  Sess.) 
3148,  3149],  having  previously  passed  the  Senate  on  June  8  [Id.,  3042]. 
It  appears  officially  in  14  Stat.  358  under  date  of  June  16,  1866.    Two 
States  (Ohio  and  New  Jersey)  which  had  ratified  it  withdrew  their  assent 
before  three  quarters  of  the  States  had  ratified,  occasioning  grave  doubt 
as  to  the  validity  of  such  action.    Assuming  this  withdrawal  to  be  in- 
effective, the  twenty-eighth  State  (South  Carolina),  there  then  being 
37  in  all,  ratified  on  July  9,  1868  [2  Doc.  Hist.  Const.,  764].    If  such 
withdrawal  was  effective,  the  twenty-eighth  State  (Georgia)  ratified  on 
July  21,  1868  [5  Doc.  Hist.  Const.,  554-557].    On  July  20,  1868,  Secre- 
tary of  State  Seward  certified  that  it  had  become  a  part  of  the  Constitu- 
tion if  said  withdrawals  were  ineffective  [15  Stat.  708],    On  July  21, 1868, 
Congress  by  joint  resolution  declared  it  a  part  of  the  Constitution  and 
that  it  should  be  promulgated  as  such  by  the  Secretary  of  State  [15  Stat. 
709-10].    On  July  28,  1868,  Secretary  Seward  certified  it  as  such  with- 
out reservation  [15  Stat.  708-711]. 


THE  CONSTITUTION  639 

the  Executive  and  Judicial  officers  of  a  State,  or  the  members 
of  the  Legislature  thereof,  is  denied  to  any  of  the  male 
inhabitants  of  such  State,  being  twenty-one  years  of  age, 
and  citizens  of  the  United  States,  or  in  any  way  abridged, 
except  for  participation  in  rebellion,  or  other  crime,  the 
basis  of  representation  therein  shall  be  reduced  in  the 
proportion  which  the  number  of  such  male  citizens  shall 
bear  to  the  whole  number  of  male  citizens  twenty-one  years 
of  age  in  such  State. 

SECTION  3.  No  person  shall  be  a  Senator  or  Represen- 
tative in  Congress,  or  elector  of  President  and  Vice  Presi- 
dent, or  hold  any  office,  civil  or  military,  under  the  United 
States,  or  under  any  State,  who,  having  previously  taken 
an  oath,  as  a  member  of  Congress,  or  as  an  officer  of  the 
United  States,  or  as  a  member  of  any  State  Legislature,  or 
as  an  executive  or  judicial  officer  of  any  State,  to  support 
the  Constitution  of  the  United  States,  shall  have  engaged  in 
insurrection  or  rebellion  against  the  same,  or  given  aid  or 
comfort  to  the  enemies  thereof.  But  Congress  may,  by  a 
vote  of  two-thirds  of  each  House,  remove  such  disability. 

SECTION  4.  The  validity  of  the  public  debt  of  the  United 
States,  authorized  by  law,  including  debts  incurred  for  pay- 
ment of  pensions  and  bounties  for  services  in  suppressing 
insurrection  or  rebellion,  shall  not  be  questioned.  But 
neither  the  United  States  nor  any  State  shall  assume  or  pay 
any  debt  or  obligation  incurred  in  aid  of  insurrection  or 
rebellion  against  the  United  States,  or  any  claim  for  the 
loss  or  emancipation  of  any  slave;  but  all  such  debts, 
obligations  and  claims  shall  be  held  illegal  and  void. 

SECTION  5.  The  Congress  shall  have  power  to  enforce, 
by  appropriate  legislation,  the  provisions  of  this  article. 

ARTICLE   XV.1 

. 
SECTION  I.     The  right  of  citizens  of  the  United  States  to 

vote  shall  not  be  denied  or  abridged  by  the  United  States  or 

1  The  Fifteenth  Amendment  was  proposed  by  Congress  on  February 
26,  1869,  when  it  passed  the  Senate  [Cong.  Globe  (4.oth  Cong.  3rd  Sess.) 
1641],  having  previously  passed  the  House  on  February  25  [Id.,  1563, 


, 


640  APPENDIX 

by  any  State  on  account  of  race,  color,  or  previous  condition 
of  servitude. — 

SECTION  2.    The  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. — 

ARTICLE   XVI.1 


The  Congress  shall  have  power  to  lay  and  collect  taxes  on 
incomes,  from  whatever  source  derived,  without  apportion- 
ment among  the  several  States,  and  without  regard  to  any 
census  or  enumeration. 

ARTICLE   XVII.2 

[i.]  The  Senate  of  the  United  States  shall  be  composed 
of  two  Senators  from  each  State,  elected  by  the  people 
thereof,  for  six  years;  and  each  Senator  shall  have  one  vote. 
The  electors  in  each  State  shall  have  the  qualifications 
requisite  for  electors  of  the  most  numerous  branch  of  the 
State  legislatures. 

1564].  It  appears  officially  in  15  Stat.  346  under  date  of  February  27. 
As  in  the  case  of  the  Fourteenth  Amendment  (see  note  above)  one 
State  (New  York)  withdrew  its  assent  before  three  quarters  of  the 
States  had  ratified.  If  such  withdrawal  was  ineffective,  the  twenty- 
eighth  State  (Iowa),  there  then  being  37  in  all,  ratified  on  February  3, 
1870  [2  Doc.  Hist.  Const.,  877].  Otherwise  the  last  State  needed  (Ne- 
braska) ratified  on  February  17,  1870  [Id.,  879].  On  March  30,  1870, 
Secretary  of  State  Fish  certified  that  it  had  become  a  part  of  the  Con- 
stitution [16  Stat.  1131]. 

1  The  Sixteenth  Amendment  was  proposed  by  Congress  on  July  12, 
1909,  when  it  passed  the  House  [44  Cong.  Rec.  (6ist  Cong.  1st  Sess.), 
4390,  4440,  4441],  having  previously  passed  the  Senate  on  July  5  [Id., 
4121].    It  appears  officially  in  36  Stat.  184.    The  thirty-sixth  and  thirty- 
seventh  States  (Delaware  and  Wyoming),  there  then  being  48  in  all, 
ratified  on  February  3,  1913;  and  on  February  25,  1913,  Secretary  of 
State  Knox  certified  that  it  had  become  a  part  of  the  Constitution  [37 
Stat.  1785]. 

2  The  Seventeenth  Amendment  was  proposed  by  Congress  on  May  13, 
1912,  when  it  passed  the  House  [48  Cong.  Rec.  (62d  Cong.  2d  Sess.)  6367], 
having  previously  passed  the  Senate  on  June  12,  1911  [47  Cong.  Rec. 
(62d  Cong,  ist  Sess.)  1925].    It  appears  officially  in  37  Stat.  646.    The 
thirty-sixth  State  (Wisconsin),  there  being  48  in  all,  ratified  on  May  9, 
1913;  and  on  May  31,  1913,  it  was  certified  by  the  Secretary  of  State 
Bryan  to  have  become  a  part  of  the  Constitution  [38  Stat.  2049]. 


THE  CONSTITUTION  641 

[2.]  When  vacancies  happen  in  the  representation  of  any 
State  in  the  Senate,  the  executive  authority  of  such  State 
shall  issue  writs  of  election  to  fill  such  vacancies :  Provided, 
That  the  legislature  of  any  State  may  empower  the  executive 
thereof  to  make  temporary  appointments  until  the  people 
fill  the  vacancies  by  election  as  the  legislature  may  direct. 

[3.]  This  amendment  shall  not  be  so  construed  as  to 
affect  the  election  or  term  of  any  Senator  chosen  before  it 
becomes  valid  as  part  of  the  Constitution. 

ARTICLE  XVIII.1 

SECTION  i.  After  one  year  from  the  ratification  of  this 
article  the  manufacture,  sale,  or  transportation  of  intoxicat- 
ing liquors  within,  the  importation  thereof  into,  or  the  ex- 
portation thereof  from  the  United  States  and  all  territories 
subject  to  the  jurisdiction  thereof  for  beverage  purposes  is 
hereby  prohibited. 

SECTION  2.  The  Congress  and  the  several  States  shall 
have  concurrent  power  to  enforce  this  article  by  appropriate 
legislation. 

SECTION  3.  This  article  shall  be  inoperative  unless  it 
shall  have  been  ratified  as  an  amendment  to  the  Consti- 
tution by  the  legislatures  of  the  several  States,  as  provided 
in  the  Constitution,  within  seven  years  from  the  date  of  the 
submission  hereof  to  the  States  by  the  Congress. 

ARTICLE   XIX.2 

The  right  of  citizens-  to  vote  shall  not  be  denied  or 
abridged  by  the  'United  States  or  by  any  State  on  account 
of  sex.  ^f  ^ 

Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation. 

1  The  resolution  for  the  submission  of  this  amendment  was  passed  by 
Congress  December  3,  1917.    The  amendment  was  declared  adopted  by 
Acting  Secretary  of  State  Polk  on  January  29,  1919,  three  fourths  of  the 
States  having  ratified  it  at  that  time  [40  Stat.  1941]. 

2  The  resolution  for  the  submission  of  this  amendment  was  passed  by 
Congress  May  19,  1919.     The  amendment  was  declared  adopted  by 
Secretary  of  State  Colby  on  August  26,  1920,  three  fourths  of  the  States 
having  ratified  it  at  that  time  [41  Stat.  1823]. 

41 


TABLE  OF  CASES 


(The  figures  following  these  semicolons  are  the  folios  of  this  book  in 
which  cases  are  cited.} 


Abby  Dodge,  The  (1912)  223  U.  S. 

116;  214 
Ableman    v.     Booth     (1858)     21 

Howard  506;  106 
Abrams  v.  United  States  (1919) 

250  U.  S.  616;  367,  369 
Adair  v.  United  States  (1908)  208 

U.  S.  161;  220,  221,407,  501 
Adams  v.  Milwaukee  (1913)  228 

U.S.  572;  563 
Adams  v.  New  York  (1904)   192 

U.  S.  585;  392 
Adams  v.  Tanner  (1917)  244  U.  S. 

590;  584 
Adams  Exp.  Co.  v.  Ohio  (1897) 

165  U.  S.  194;  249,  539,  540 
Adams  Express  Co.  v.  Ohio  (1897) 

166  U.  S.  185,  220;  538,  539 
Addyston  Pipe  &  Steel  Co.  (1899) 

175  U.  S.  211 ;  207,  218,  219 
^Etna  Life  Ins.  Co.  v.  Tremblay 

(1912)  223  U.  S.  185;  476 
Allen  v.  Baltimore  &  O.  R.  R.  Co. 

(1884)  II4U.  S.  311;  125 
Allen  v.  Riley  (1906)  203  U.  S.  347; 

Allen  v.  St.  Louis  I.  M.  &  S.  Ry. 

(1913)  230  U.  S.  553;  239 
Allgeyer  v.  Louisiana  (1897)   168 

u.s.  578;  513,515 

Allison  v.  Corker  (1902)  67  N.  J.  L. 

596;  124 
Almy    t>.    California    (1860)    24 

Howard  169;  443 
Alverto,  In  re  (1912)  198  Fed.  638; 

324.  327 

Alzua  v.  Johnson  (1912)  21  Philip- 
pine 308;  288 

Ambrosiniv.  United  States  (1902) 
187  U.  S.  i;  198 


American  Baseball  &  Athl.  Ass'n. 

v.  Harper    (1902),  54  Cent.  L. 

Jour.  (Mo.),  449;  500 
American  Express  Co.  v.  Caldwell 

(1917)  244  U.  8.617;  237 
American  Ins.  Co.  v.  Canter  (1828) 

i  Peters  511;  276,284,285,286, 

292,  297 
American  Manufacturing  Co.  v. 

St.  Louis  (1919)  250  U.  S.  459; 

254 

Amemcan   Print   works   v.   Law- 
rence (1847)  21  N.  J.  L.  248; 

562 
American    School    of    Magnetic 

Healing  v.    McAnnulty    (1902) 

187  U.  S.  94;  416 
American  Steel  Co. v.  Speed  (1904) 

192  U.  S.  500;  249 
American  Sugar  Ref .  Co.  v.  Louisi- 
ana (1909)  179  U.  S.  89;  600 
American  T.  &  T.  Co.  ».  St.  Louis 

etc.  Ry.  Co.   (1907)   202   Mo. 

656;  552 
Amsbaugh  v.  Exchange  Bk.  (1885) 

33  Kan.  100;  525 
Anderson      v.      Dunn    (1821)    6 

Wheaton  204;  170 
Anderson  v.  Pacific  Coast  S.  S.  Co. 

(1912)  225  U.  S.  187;  125 
Andrews  v.  Andrews  (1903)   188 

U.  S.  14;  479 
Anglo-American  Provision  Co.  v 

Davis    Provision    Co.    No.     i 

(1903)  191  U.  S.  373;  477 
Arizona      Employers'     Liability 

Cases  (1919)  250  U.  S.  400;  584 
Armour  &  Co.  v.  North  Dakota 

(1916)  240  U.  S.  510;  608 
Armour   Packing   Co.   v.   United 

States  (1908)  209  U.  S.  56;  217, 

384 

Arrowsmith  v.  Harmoning  (1886) 
118  U.  S.  194;  504 


643 


644 


TABLE  OF  CASES 


Arthur  v.  Oaks  (1894)  63  Fed.  310; 

221,  499 
Askren    v.    Continental    Oil    Co. 

(1920)  252  U.  S.  444;  213 
Atchison  T.  &  S.   F.  R.  Co.  v. 

Denver  &  N.  O.  R.  Co.  (1884) 

no  U.  S.  667;  144 
Atherton  v.  Atherton  (1901)  181 

U.  S.  155;  480 
Atlantic  C.  L.  R.  Co.  v.  Glenn 

(1915)  239  U.  8.388;  574 
Atlantic  Coast  Line  Ry.  v.  Golds- 

boro  (1914)  232  U.  S.  548;  465, 

473 
Attorney  General  &c.  v.  Colonial 

Sugar  Company  (1914)  Appeal 

Cases  237;  31,32 
Austin  v.   Tennessee   (1900)    179 

U.  8.343;  213 


B 


Bacon  v.  Waller  (1907)  204  U.  S. 
311;  609 

Bailey  v.  Alabama  (1911)  219 
U.  S.  219;  498 

Baker  v.  City  of  Grand  Rapids 
(1906)  142  Mich.  687;  534 

Baldwin  v.  Boyd  (1885)  18  Neb. 
444;  289 

Baltic  Mining  Co.  v.  Massachu- 
setts (1913)  231  U.  S.  68;  252, 

253,  541 

Baltimore  &  O.  R.  R.  Co.  v.  Inter- 
state Com.  Com.  (1909)  215 
U.  S.  216;  98 

Baltimore  &  O.  R.R.  Co.  v.  Inter- 
state Com.  Com.  (1911)  221  U. 
S.  612;  227 

Baltimore  Traction  Co.  v.  Balti- 
more Belt  R.  R.  Co.  (1894)  151 
U.  S.  137;  557 

Baltzer  v.  North  Carolina  (1896) 
161  U.  S.  240;  456 

Banham's  Case,  8  Rep.  115;  497 

Bank  of  California  v.  Richardson 
(1919)  248  U.  S.  476;  540 

Bank  of  Columbia  v.  Ikeley,  4 
Wheaton  235;  512 

Bank  of  Toronto  v.  Lambe  (1887) 
12  Appeal  Cases  575;  31 

Bank  of  United  States  v.  Deveaux 
(1809)  5  Cranch  61;  102 

Bank  of  United  States  v.  Planters 
Bank  of  Georgia  (1824)  9 
Wheaton  904;  93 


Barber  v.  Irwin  (1864)  34  Ga.  27; 

Barbier  Connelly  (1885)  113  U.  S. 

27;  564,  593,  6°3,  605 
Bardwell    v.    Collins    (1890)    44 

Minn.  97;  521 
Barney  v.  McCreery  (1808)  Clarke 

&  Hall's  Contested  Elections, 

167;  160 
Baron    v.    Burnside    (1887)    12 1 

U.  S.  186;  485 
Barritz    v.    Beverly    (1896)    163 

U.  S.  118;  454 
Barrow  S.  S.  Co.  v.  Kane  (1898) 

170  U.  S.  100;  485 
Basso  v.  United  States  (1916)  239 

U.  S.  602;  in 
Bauman  v.  Ross  (1897)  167  U.  S. 

548;  595 
Baxter  v.  Commissioners  of  Taxa- 

ation  (1907)  4  Commonwealth 

Law  Reports  1087;  32 
Beavers  v.    Haubert    (1905)    198 

U.S.  77;  386 
Beer  Co.  v.  Massachusetts  (1877) 

97  U.  S.  25;  465 
Beers  v.  Glynn  (1909)  211  U.  S. 

477;  60 i 
Beers  v.  Haughton  (1835)  9  Peters 

329;  454 
Belfast,   The    (1868)    7    Wallace 

624;  108,  109 
Bell  v.  Bell  (1901)  181  U.  S.  175; 

479 
Benedict   Ex  parte   (1862)    Fed. 

Case    No.     i,    292;    85,    262, 

271 
Benner  v.  Porter  (1850)  9  Howard 

235;  286 
Bernhardt  v.   Brown   (1896)    118 

N.  C.  700;  520,  526,  527 
Bertholf  v.  O'Reilly  (1878)  74  N. 

Y.  509;  408,  513 
Bertonneau  v.  Board  of  Directors 

(1878)    Fed.    Cas.    No.    1,361; 

565 
Betencourt  v.  Eberlin  (1882)  71 

Ala.  461;  521 
Biaz,  Ex  parte  (1890)   135  U.  S. 

403;  128 
Bickerdike  v.  Allen  (1895)  157  111. 

95*.  521 

Biddle  v.  Richards  (1823)  Clarke 
&    Hall,    Contested    Elections, 

407;  157 

Billings  a.UnitedStates  (1914)  232 
U.  S.  261;  417 


TABLE  OF  CASES 


645 


Binghampton  Bridge,  The  (1865) 

3  Wallace  51;  460 
Birsenthall  v.  Williams  (1864,  Ky.) 

i  Duv.  329;  520 
Blackstone  v.  Miller  (1903)    188 

U.  S.  189;  544,  545,  546 
Blake  v.  McClurg  (1898)  172  U.  S. 

239;  483,  486,  589 
Block  v.  Hirsh  (1921)  41  Supt.  Ct. 

Rep.  458;  305 
Blount's  Case  (1797)  Taft's  Senate 

Election  Cases,  74;  170 
Blumenstock  Bros.  Adv.  Agency 

v.  Curtis  Pub.  Co.  (1920)  252 

U.  S.  436;  211 
Bocquet  v.    McCarthy    (1831)    2 

B.  &  Ad.  951;  527 
Bogart,  Ex  parte  (1873)  2  Sawyer 

396;  263 
Bollman,  Ex  parte  (1807)  4  Cranch 

75;  381 

Bonaparte  v.  Tax  Court  (1881) 
104  U.  S.  592;  540 

Booth  v.  Illinois  (1902)  184  U.  S. 
425;  566 

Bosley  v.  McLaughlin  (1915)  236 
U.S.  385;  581 

Boston  &  Rox.  Mill  Corp.  v.  New- 
man (1832,  Mass.)  12  Pick. 

467;  553 
Botna  Valley    St.    Bk.  v.   Silver 

City  Bk.  (1893)  87  la.  479;  526 
Bowman  v.  Chicago  etc.  Ry.  Co. 

(1888)  125  U.  S.  465;  213,  234, 

244,  246 
Boyd  v.  Mills  (1894)  53  Kan.  594; 

449 
Boyd  v.  United  States  (1886)  116 

U.  S.  616;  391 
Boyer,  Ex  parte  (1884)  109  U.  S. 

629;  109 
Brass  v.  North  Dakota  (1894)  *53 

U.S.  391;  569 
Brazee   v.    Michigan    (1916)    241 

U.  S.  340;  584 
Brennan  v.  Titusville  (1894)  153 

y.  s.  289;  249 

Brig  Aurora,  The  (1813)  7  Cranch 

382;  152 
Briscoe    v.    Bank    of    Kentucky 

(1837)  ii  Peters  257;  442 
Brolan   v.   United   States    (1915) 

236  U.  S.  216;  214 
Bronson,    Matter  of   (1896)    150 

N.  Y.  i;  546 
Bronson     v.     Kinzie     (1843)      i 

Howard  311;  455 


Brown    v.    Houston    (1885)    114 

U.  S.  622;  249 
Brown   v.    Maryland    (1827)    12 

Wheaton   419;  196,    213,    248, 

443 
Brown  v.  New  Jersey  (1899)  175 

U.S.  172;  530 
Brown  v.   Van  Braam    (1797)   3 

Dallas  344;  113 
Brown  v.  Walker  (1896)  161  U.  S. 

591;  69,388,389,390 
Brushaber  v.  Union  Pac.  R.  R. 

(1916)  240 U.S.  I ;  188,418,602 
Bryant  v.  Shute's  Ex'r.  (1912)  147 

Ky.  268;  520 
Buchanan  v.  Warley   (1917)  245 

U.  S.  60;  564,  606 
Buck  v.  Beach  (1907)  206  U.  S. 

392;  542,   543 
Budd  v.   New  York   (1891)    143 

U.S.  517;  568,607 
Buneler  v.  Dawson  (1843)  5  111. 

536;  520 
Bunting    v.    Oregon    (1917)    243 

U.  S.  426;  581,  611 
Burdeau  v.  McDowell  (1921)  41 

Supt.  Ct.  Rep.  574;  393 
Burroughs  v.   Peyton    (1864)    1 6 

Gratton  470;  258 
Butchers'  Union  Co.  v.  Crescent 

City  Co.  (1883)  in  U.  S.  746; 

464 
Butler    v.    Gaveley    (1892)     146 

U.S.  303;  338 
Butler  v.  Perry  (1916)  240  U.  S. 

328;  500 
Butter  v.  Pennsylvania  (1850)  10 

Howard  402 ;  460 
Butterfield   v.    Stranahan    (1904) 

192  U.  S.  470;  153,  214, 410, 415 


Calder  v.  Bull  (1798)  3  Dallas  386; 

120,  121,   140,   148,  382,  446 

Caldwell  v.  Dawson  (1862)  4  Mete. 

(Ky.)  121 ;  341 
Caldwell  v.  North  Carolina  (1903) 

187  U.  S.  622;  210 
Caldwell  y.  Parker  (1920)  252  U.  S. 

376;  266,  267 
Caldwell  v.  Sioux  Falls  S.  Y.  Co. 

(1917)  242  U.  S.  559;  575 
Calendar's  Case  (1800)  Wharton's 

State  Trials,  688;  357,  360 
Calhoun    v.    Massie    (1920)    253 

U.  S.  170;  183 


646 


TABLE  OF  CASES 


California  w.  Central  Pac.  Ry.  Co. 

(1888)  127  U.  S.  i;  540 
California  v.   Pacific  R.   R.   Co. 

(1888)  127  U.  S.  i ;  224,  340, 459 
California  v.  Southern  Pac.   Co. 

(1894)  157  U.  S.  229;  96 
Callan  v.  Wilson  (1888)  127  U.  S. 

540;  306,  385 
Caminettiv.  United  States  (1917) 

242  U.  S.  470;  230 
Campbell  v.  California  (1906)  200 

U.  S.  87;  601 
Campbell  v.  Morris  (1797)  3  Harr. 

&McH.  (Md.)  535;  486 
Campbell  v.  Sherman   (1874)  35 

Wis.  103;  123 
Cannon    v.    Campbell    (1882)    2 

Ellsworth's  Digest  of  Contested 

Elections,  604;  157 
Capital  City  Dairy  Co.  v.  Ohio 

(1902)  183  U.  S.  238;  605 
Capital    Traction    Co.    v.    Hof. 

(1899)   174  U.  S.  i;  305,  306, 

404,  405 
Capital    Trust    Co.    v.    Calhoun 

(1919)  250  U.  S.  208;  183 
Carfield   v.   Caryell   (1825)    Fed. 

Cas.  No.  3,230;  486 
Cart  v.  Lassard  (1889)  18  Ore.  221 ; 

499 
Carter  v.  McClaughry  (1902)  183 

U.S.  365;  263 
Carter  v.  Texas  (1900)  177  U.  S. 

442;  587 

Case   de   Libellis   Famosis,    The 
(1605)  5  Coke's  Rep.  125;  346, 

347 
Cassidy  v.  Leitch  (1877,  N.  Y.)  2 

Abb.  N.  9.315;  520 
Cedar  Rapids  Gas  Co.  v.  Cedar 

Rapids  (1912)  223  U.  S.  655; 

573 
Central    Lumber    Co.    v.    South 

Dakota  (1912)  226  U.  S.  157; 

576 
Central  Trust  Co.  p.Garvan(i92i) 

254  U.  S.  554;  269 
Chapman,  In  re  (1897)  166  U.  S. 

661;  172 
Charles  River  Bridge  v.  Warren 

Bridge   (1837)    n    Peters  420; 

462 
Cherokee  Nation  v.  Georgia  (1831) 

5  Peters  i ;  131,  132,313 
Cherokee    Nation    v.    Hitchcock 

(1902)  187!!.  S.  294;  317 


Cherokee  Nation  v.  Kansas  Ry. 
Co.  (1890)  135  U.  8.641;  552 

Cherokee  Tobacco  Case  (1870)  II 
Wallace  61 6;  73,  74 

Chesapeake,  etc.  Canal  Co.  v.  Key 
(1829)  3  Cranch  C.  C.  599;  551 

Chesapeake  &  O.  R.  Co.  v.  Ken- 
tucky (1900)  179  U.  S.  388;  565 

Chicago  v.  Sturges  (1911)  222 
U.  S.  313;  565 

Chicago  &  Alton  R.  R.  Co.  v. 
Tranbarger  (1915)  238  U.  S.  67; 

469,  577 
Chicago  B.  &  G.  R.  Co.  v.  Chicago 

(1897)  166  U.  S.  226;  549 
Chicago  B.   &  Q.  R.  R.   Co.  v. 

Chicago  (1897)  1 66  U.  S.  226; 

564 

Chicago,  B.  &  Q.  Ry.  Co.  v.  Il- 
linois (1906)  200  U.  S.  561;  555 

Chicago  B.  &  Q.  Ry.  v.  Nebraska 

(1898)  170  U.  S.  57;  465 
Chicago  &  G.  T.  Ry.  Co.  v.  Well- 
man  (1892)  143  U.  S.  339;  573 

Chicago,  M.  &  St.  P.  Ry.  Co.  v. 
Tompkins  (1900)  176  U.  S.  167; 

573 

Chicago,  M.  &  St.  P.  R.  R.  v. 
Wisconsin  (1915)  238  U.  S.  491; 

474 

Chicago  R.  I.,  etc.  Ry.  v.  Hard- 
wick  Elevator  Co.  (1913)  226 
U.  S.  426;  248 

Chicago,  &  St.  P.  Ry.  Co.  v. 
Tompkins  (1900)  176  U.  S.  167; 

Chinese   Exclusion   Cases   (1889) 

130  U.  8.581;  73 
Chin  Yow  v.  United  States  (1908) 

208  U.  S.  8;  416 
Chiracs.  Chirac  (1817)  2  Wheaton 

259;  74,  323 
Chisholm    v.    Georgia    (1793)    2 

Dallas  419;  93,97,  H7 
Church  v.  Bullock  (1908)  104  Tex. 

i;  344 
Cincinnati  v.  Louisville  &  N.  R.  R. 

Co.  (1912)  223  U.  S.  390;  311 
Cincinnati  W.  &  Z.  R.  R.  Co.  v. 

Commissioners    (1852)    i    Ohio 

St.  77;  150 

Citizens  Savings  &  Loan  Assoc.  v. 
Topeka  (1874)  20  Wallace  655; 

City  of  Chicago  v.  O'Connell, 
(1917)  278111.  59I5467 


TABLE  OF  CASES 


647 


City  of  Cincinnati  v.  Louisville  & 

N.  R.  R.  Co.  (1912)  223  U.  S. 
.390;  55° 
City    of    Dawson    v.    Columbia 

Avenue  Saving  Fund  Co.  (1905) 

197  U.  S.  178;  456 
City  of  Englewood  v.  Denver  & 

St.  P.  Co.  (1919)  248  U.  S.  294; 

463 
City  of  Tampa  v.  Tampa  W.  W. 

(1903)  45  Fla.  600;  467 

City  Ry.  Co.  v.  Citizens  Street 
R.  Co.  (1897)  1 66  U.  S.  557;  459 

Civil  Rights  Cases  (1883)  109 
U.  S.  3;  423,  425,  426,  498,  503, 

59 i 
Claasen,  In  re  (1891)   140  U.  S. 

200;  384,  385 
Clairmount      v.      United   States 

(1912)  225  U.S.  551;  75 
Clark  v.  Nash  (1905)   198  U.  S. 

36l5  553 t 554 
Clark  Distilling  Co.  v.  Western 

Md.  Ry.  Co.  (1917)  242  U.  S. 

311;  234,410,  567 
Clarke,  Ex  parte  (1879)  IOOU.  S. 

399;  101 
Cleveland  v.  Cleveland  City  Ry. 

(1904)  194  U.  S.  517;  463 
Cleveland  &c.  Ry.  Co.  v.  Backus 

(1894)  154  U.  S.  439;  539 
Cleveland  &  St.  L.  Ry.  v.  Porter 

(1908)  210  U.  S.  177;  595 
Clinton  v.  Englebrecht  (1871)  13 

Wallace  434;  287 
Clyatt  v.  United  States  (1905)  197 

U.S.  2075423,  500 
Coal  &  C.  Ry.  v.  Conley  (1910)  67 

W.  Va.  129;  574 
Coe*>.  Errol  (1886)  n6U.  S.  517; 

212,  443,  536 
Coffin  v.  Coffin  (1808)  4  Mass,  i; 

176 
Cohens     v.     Virginia     (1821)     6 

Wheaton264;  95,  148 
Coleman  v.  Tennessee  (1878)  97 

U.  S.  509;  266 
Coleman  v.  United  States  (1894) 

152  U.  S.  96;  in 
Collectors  Day  (1870)  u  Wallace 

113;  197 
Collet  v.  Collet  (1792)  2  Dallas 

294;  323 
Cominirio  v.  Clarke  &  Son  (1918) 

172  N.  Y.  Supp.  478;  124 
Commonwealth       v.       Campbell 

(1909)  133  Ky.  50,63;  566 


Commonwealth  v.  Chapman 
(1848)  13  Metcalf  (Mass.)  68; 
378 

Commonwealth  v.  Essex  Co. 
(1859)  13  Gray  239;  474 

Commonwealth  v.  Goodall  (1896) 

165  Mass.  588;  567 
Commonwealth    v.    Herr    (1910) 

229  la.  132;  344 
Commonwealth  v.  Murphy  (1896) 

1 66  Mass.  171;  375 
Commonwealth      v.       Nickerson 

(1920,  Mass.)   128  N.  E.  273; 

616 
Commonwealth  v.  Plaisted  (1889) 

148  Mass.  375;  344 
Commonwealth  v.  Tracy   (1843) 

5  Metcalf  (Mass.)  536;  489 
Commonwealth  v.  Wyman  (1853) 

12  Cush.  (Mass.)  237;  448 
Compagnie  Francaise  v.  Board  of 

Health  (1902)  186  U.  S.  380;  246 
Conkey  v.  Hart  (1856)  14  N.  Y. 

22;  455 
Conner     v.     Elliott     (1855)      18 

Howard  591;  483 
Connolly  v.  Union  Sewer  Pipe  Co. 

(1902)  184  U.  S.  540;  593,  600, 

604,  609 
Consolidated  Gas  Co.  v.  City  of 

New  York  (1907)  157  Fed.  849; 

573 
Continental  Nat.  Bank  v.  Thurbar 

(1893)  74  Hun  632,  143  N.  Y. 

648;  520 
Cook  v.  Marshall  (1905)  196  U.  S. 

261;  213 
Cook  v.  United  States  (1891)  138 

U.  S.  157;  383 
Cooley  v.  Port  Wardens  (1851)  12 

Howard  299;  243,244,  248 
Cooper's  Case  (1800)  Wharton's 

State  Trials;  357,  360 
Cooper  v.  Newell  (1899)  173  U.  S. 

5535  475 
Cooper  v.  Telfair  (1800)  4  Dallas 

14,  19;    120 

Coppage  v.  Kansas  (1915)  236  U. 

S.  i;  585 
Cornell  v.  Coyne  (1904)  192  U.  S. 

418;  196 
Corn   Products   Refining    Co.    v. 

Eddy  (1919)  249  U.  S.  427;  576 
Corporation    Tax    Cases    (1911) 

220  U.  S.  107;  187,  193,  199 
Cosgrove  v.  Winney   (1899)    174 

U.  S.  64;  8 1 


648 


TABLE  OF  CASES 


Coulter  v.  Louisville  &  N.  R.  R. 
Co.  (1905)  196  U.  S.  599;  600 

Counselman  v.  Hitchcock  (1892) 

142  U.  S.  547;  388 
Cotting  v.  Kansas  City  S.  Y.  Co. 

(1901)  183  U.  S.  79;  594 
County  of  Lane  v.  Or.egon  (1868) 

7  Wallace  71;  29 
County    of    Mobile    v.    Kimball 

(1880)  102  U.  S.  691;  235 
Coupland,  Ex  parte  (1862)  26  Tex. 

386;  259 
Courier  Lith.   Co.  v.   Donaldson 

Lith.  Co.  (1900)  104  Fed.  993; 

339 

Covington  Bridge  Co.  v.  Kentucky 
(1894)  154  U.  S.  204;  209,  235, 
244 

Covington  Turnpike  Co.  v.  Sand- 
ford  (1896)  164  U.  S.  578;  515, 
607 

Cox  v.  Wood  (1918)  247  U.  S.  3; 
260 

Coyle  v.  Oklahoma  (1911)  221 
U.  S.  559;  309,  3".  312,  438 

Crandall  v.  Nevada  (1867)  6  Wal- 
lace 35;  334 

Crane  v.  Campbell  (1918)  245 
U.  S.  304;  234,  566 

Crawford  v.  United  States  (1909) 
212  U.  S.  183;  305 

Crew  Levick  Co.  v.  Pennsylvania 

(1917)  245  U.  8.292;  251 
Crookshank,  Ex  parte  (1921)  269 

Fed.  980;  616 
Cross     v.     Harrison     (1853)     16 

Howard  164;  62,  284,  290,  291, 

292,  294,  298,  300 
Grossman  v.  Lurman  (1904)   192 

U.  S.  189;  563 
Cudahy  Packing  Co.  v.  Minnesota 

(1918)  246  U.  S.  450;  251 
Cummings  v.   Missouri   (1866)   4 

Wallace  277;  446,  449 
Cummings  v.  Reading  School  Dist. 

(1905)  198  U.  8.458;  528 
Cunningham  v.  Macon  &  B.  R.  R. 

Co.  (1883)  109  U.  S.  446;  125 

D 

Dakota  Cent.  Tel.  Co.  v.  South 

Dakota  (1919)  250  U.  S.  163; 

268 
Daly   v.    Harris    (1864)    33    Ga. 

(Supp.)  38;  258 
Daly  v.  Smith  (1874)  38  N.  Y. 

Super.  Ct.  158;  499 


Darnell  &  Son  v.  Memphis  (1908) 

208  U.  S.  113;  249 
Darrington  v.  Bank  of  Alabama 

(1851)  13  Howard  12;  442 
Dartmouth  College  v.  Woodward 

(1819)    4    Wheaton    518;  148, 

453,  457,  474,  512 
Davidson  v.  New  Orleans  (1877) 

96  U.  S.  97;  507,  508,  511,  533, 

549 
Davis  v.  Beason  (1890)  133  U.  S. 

333;  287,343 
Davis  v.  Ohio  (1916)  241  U.  S. 

565;  158 
Davis  v.  United  States  (1917)  247 

Fed.  394;  387 
Dean  of  St.  Asalph's  Case  (1783) 

21  State  Trials  847;  352,  353 
Debs,  In  re  (1895)  158  U.  S.  564; 

220,  340,  385 
Deckert,  In  re  (1874)  Fed.  Cas. 

No.  3,728;  338 
DeGanay  v.  Lederer   (1919)   250 

U.  S.  376;  412,  543,  544 
DeGeofroy  v.  Riggs  (1890)  133  U. 

S.  258;  307 
DeGroot  v.  United  States  (1866) 

5  Wallace  419;  138 
Deitzschfl.  Huidekoper  (1880)  103 

U.  S.  494;  107 
De  La  Montany  v.  De  La  Mon* 

tany  (1896)  112  Calif.  101;  524, 

526 
De  Lancy  v.  United  States  (1918) 

249  Fed.  625;  265 
Delaware  L.  &  W.  R.  R.  v.  Central 

S.  Y.  &  T.  Co.  (1889)  45  N.  J. 

Eq.  50;  570 
Delaware  L.  &  W.  R.  R.  Co.  v. 

Pennsylvania  (1905)   198  U.  S. 

Delaware  L.  &  A.  R.  R.  v.  Switch- 
men's Union  (1907)  158  Fed. 
541;  221,499 

DeLima  v.  Bidwell  (1901)  182 
U.  S.  i;  276,  285,  289,  292 

Dent  v.  West  Virginia  (1889)  129 
U.  S.  114;  417,  563 

Detroit  v.  Detroit  etc.  R.  Co. 
(1880)  43  Mich.  140;  474 

Detroit  v.  Detroit  Citizens  Ry. 
(1902)  184  U.  S.  368;  463,  467 

Detroit  United  Ry.  v.  Michigan 
(1916)  242  U.  S.  283;  463 

Diaz  v.  United  States  (1912)  223 
U.  S.  442;  396,  401,  531 


TABLE  OF  CASES 


649 


Dice  v.  Sherman  (1907)  107  Va. 

424;  553 
Dick  v.  United  States  (1908)  208 

U.  S.  340;  75,  216 
Dicker  son  v.  Bridges  (1898)   147 

Mo.  235;  289 
Dillon,   In  re    (1854)   Fed.  Cas. 

3,  914;  400 
Dillon  v.  Gloss  (1921)  41  Supreme 

Ct.  R.  510;  40 
District  of  Columbia  v.   Brooke 

(1909)  214  U.  S.  138;  305 
Ditson  v.  Ditson  (1856)  4  R.  I.  87; 

479 

Dobbins  v.  Commissioners  of  Erie 
County  (1842)   1 6  Peters  435; 

198,  539 
Doe  v.  Braden  (1853)  16  Howard 

635;  129 
Dooley  v.  United  States  (1901)  182 

U.  S.  222;  62,  63,  195,  295 
Dorr  v.  United  States  (1904)  195 

U.  S.  138;  301,  304 
Dougherty  v.  American  McKenna 

Process  Co.  (1912)  255  111.  369; 

477 
Douglas  v.  Forrest  (1828)  4  Bing. 

686;  527 
Downes    v.    Bid  well    (1901)    182 

U.  S.  244;  276,  282,  295,  297, 

298,  301,  302,  306,  328 
Doyle   v.    Continental    Ins.    Co. 

(1876)  94  U.S.  535;  485 
Doyle  v.  Falconer  (1866)  L.  R.  I 

P.  C.  328;  172 
Dred  Scott  v.  Sandford  (1856)  19 

Howard  393 ;  274,  276,  277,  283, 

284,  285,  298,  300,1318,  319, 

323,326,327,336      v 
Drew  v.  Thaw  (1914)  235  U.  S. 

432;  490 

Druryir.Lewis(i9o6)2OoU.S.  15107 
Duff  v.  Russell  (1891)  68  N.  Y. 

Super.  Ct.  80,  aff'd.  133  N.  Y. 

678;  499 
Duncan  v.   Missouri   (1894)    152 

U.S.  377;  417,449 
Dunham  v.  Dunham  (1896)    162 

111.  589;  479 
Dun  ton  v.  Halstead  (1840)  2  Pa. 

L.  J.  R.  450;  175 
Dynes     v.      Hoover      (1857)    20 

Howard  65;  262 

E 

Earle  v.  McVeigh  (1873)  91  U.  S. 
503:  522 


Edwards   v.   Kearzey    (1877)    96 

U.  S.  595;  455 
Eiger  v.  Garrity  (1918)  246  U.  S. 

88;  566 
Eisner  v.   Macomber  (1920)   252 

U.  S.  189;  188 
Ekern  v.   McGovern  (1913)    154 

Wis.  157;  127 
Ekiu  v.  United  States  (1892)  142 

U.  S.  651,663;  63,416 
Elk  v.  Wilkins  (1884)  112  U.  S. 

94J  3i6 
Eldridge  v.  Trezevant  (1896)  160 

U.  S.  452;  420,  555 
El   Paso   &   N.    E.   Ry.   Co.   v. 

Gutienez  (1909)  215  U.  S.  87;  119 
Embrey    v.    Palmer    (1882)    107 

U.  S.  3;  476 
Emerson,   In  re   (1864)   39  Ala. 

437;  259 
Empire  Bank,  Matter  of  (1858) 

18  N.  Y.  199;  521 
Employers  Liability  Cases  (1908) 

207  U.  S.  463;  119,  227,  242 
Engel    v.    O'Malley    (1911)    219 

U.  S.  128;  594 
Erie  v.  Erie  G.  &  M.  Co.  (1908)  78 

Kan.  348;  574 
Ernest    v.    Missouri    (1895)     15& 

U.  S.  296;  214 
Ervienv.  United  States  (1919)  251 

U.  S.  41;  312 
Escanaba  Co.  v.  Chicago  (1882) 

107  U.  S.  678;  245,  310 
Essex  Pub.  Rd.  Board  v.  Skinkle 

(1891)  140  U.  S.  334;  140 
Evans  v.  Gore  (1920)  253  U.  S. 

245;  200 
Express  Cases  (1886)  117  U.  S.  i; 

144 


Fair,  In  re  (1900)  100  Fed.  149; 
125 

Fairbank  v.  United  States  (1901) 
181  U.  S.  283;  196 

Fairfax  v.  Hunter  (1813)  7  Cranch 
603;  74 

Fallbrook  Irrigation  Dist.  v.  Brad- 
ley (1896)  164  U.  S.  112;  534, 
552 

Fall,  Exparte  (1918)  251  Fed.  413; 
264 

Fargo  v.  Hart  (1904)  193  U.  S. 
490;  539 


650 


TABLE  OF  CASES 


Federal  Trade  Comm.  v.    Gratz 

(1920)  253  U.  S.  421;  219 
Fellows  v.  Blacksmith  (1856)   19 

Howard  366;  314 
Felt  v.  Felt  (1899)  59  N.  J.  Eq. 

606;  479 
Felts  v.  Murphy  (1906)  201  U.  S. 

126;  530 
Fenton    v.    Hampton    (1858)    n 

Moore's  P.  C.  347;  172 
Fernandez    v.    Casey    &    Swasey 

(1890)  77  Tex.  452;  525,  526 
Fertilizing    Co.    v.    Hyde    Park 

.(1878)  97  U.  S.  659;  464,  605 
Ficklin  v.  Shelby  County  Taxing 

Dist.  (1892)  145  U.  S.  i;  251 
Fidelity  Mut.  Life  Assn.  v.  Mettler 

(1902)  185  U.  S.  308;  610 
Field  v.  Clark  (1892)   143  U.  S. 

649;  150,  152,  183 
Fillan  v.  Gillan  (1867)  55  Pa.  430; 

535 
Finley   v.    California    (1911)    222 

U.  S.  28;  604 
Fischer  v.  St.  Louis   (1903)    194 

U.  8.361;  605 
Fisk  v.  Jefferson  Police  Jury  (1885) 

116  U.  S.  131;  460 
Fitzpatrick  v.  United  States  (1900) 

178  U.  S.  304;  384 
Flaucher   v.    Camden    (1893)    56 

N.  J.  L.  244;  123 
Fleming  v.  Page  (1850)  9  Howard 

603;  289,  292 
Fletcher  v.  Peck  (1810)  6  Cranch 

37;  122,  317,  453,  456 
Flexner  v.  Farson  (1915)  268  111. 

435,  248  U.S.  289;  518 
Folsom   v.    Township    Ninety-six 

(1895)  159  U.  S.  611;  532,  534 
Fontleroy  ».  Lum  (1908)  210  U.  S. 

230;  476 
Foot  v.  Buchanan  (1902)  113  Fed. 

156;  390 
Ford  v.  Jermon  (1865)  6  Phila.  R. 

6;  500. 
Fort  Leavenworth  R.  R.  Co.  v. 

Lowe  (1884)  114  U.  S.  525;  306 
Foster  v.  Neilson  (1829)  2  Peters 

253;  73,  129 
Foster  v.  United  States  (1897)  32 

Ct.  Cl.  184;  in 
Fourteen     Diamond     Rings     v. 

United  States  (1901)  183  U.  S. 

176;  295 
Fox  v.  Ohio  (1847)  5  Howard  410; 

395 


Frank    v.    Mangum    (1915)    237 

U.  S.  309;  531,  532 
Freeborn  v.  Smith  (1864)  2  Wal- 
lace i 60;  140 
Freeland  v.  Williams  (1889)   131 

U.  S.  405;  140 
Freeport  Water  Co.  v.  Freeport 

(1901)  1 80  U.  S.  587;  461,  463, 

464,  467 
French  v.  Barber  Asphalt  Pav.  Co. 

(1901)  181  U.  S.  324;  408,  596, 

598 
French  Trustee  v.  Hay  (1874)  22 

Wallace  250;  107 
Frohwerk  v.  United  States  (1919) 

249  U.  S.  204;  358 
Frost  v.  Thomas  (1899)  26  Colo. 

222;  127 
Frothingham  v.  Shaw  (1899)  175 

Mass.  59;  545 


Galveston,    H.  etc.    Ry.    Co.   v. 

Texas  (1908)  210  U.  S.  217;  251 
Gardner  v.  Michigan   (1905)    199 

U.  8.325;  600 
Gardner  v.  Newburgh  (1816,  N. 

Y.)  2  Johns.  Ch.  162;  550 
Garland,  Ex  parte  (1866)  4  Wal- 

lace 333;  69 
Garland  v.  Washington  (1914)  232 

U.  S.  642;  530 
Garnett,  In  re  (1891)  141  U.  S.  i; 

108 
Garrison  v.    City  of   New   York 

(1874)  2I  Wallace  196;  140 
Gassies  v.  Ballon  (1832)  6  Peters 


;  323 
Realty 


Gast     Realty     &     Inv.     Co.     v. 

Schneider  Granite   Co.    (1916) 

240  U.  S.  55;  596 
Gatlin  v.  Walton  (1864)  60  N.  Car. 

33.3;  259 
Gaviers  v.  United  States   (1911) 

220  U.  8.338;  396 
Gaylord  v.  Sanitary  Dist.  (1903) 

204111.  576;  553 
Geer  v.   Connecticut   (1896)    161 

U.  S.  519;  246,  577 
General   Railway    Signal    Co.    v. 

Virginia  (1918)  246  U.  S.  500; 

253,  541 
Genesee    Chief,    The    (1851)    12 

Ho  ward  443;  108,  109 
Geofrey  v.  Riggs  (1890)  133  U.  S. 

258;  ?i 


TABLE  OF  CASES 


651 


Georgia  v.  Stanton  (1867)  6  Wal- 
lace 50;  131,  132 

Georgia  Ry.  &  P.  Co.  v.  Railroad 
Commission  (1919,  Ga.)  98  S. 
E.  696;  467 

Gerlach,  Ex  parte  (1917)  247  Fed. 
616;  264 

German  Alliance  Ins.  Co.  v.  Hale 
(1911)  219  U.  S.  307;  593 

German  Alliance  Ins.  Co.  v.  Kan- 
sas (1914)  233  U.  S.  389;  569 

Germania  Savings  Bk.  v.  Suspen- 
sion Bridge  (1899)  159  N.  Y. 
362;  140 

Gibbons  v.  Ogden  (1824)  9 
Wheaton  i;  207,  209,  212,  235, 
242 

Gibson  v.  Chouteau  (1871)  13 
Wallace  92;  288 

Gibson  v.  Mississippi  (1896)  162 
U.  S.  565;  449 

Gill  v.  Maryland  (1846)  4  Gill 
(Md.)  487,  490;  500 

Giozza  v.  Tiernan  (1893)  148  U.  S. 
657;  417 

Gisbourne  v.  Hurst  (1710)  I  Salk. 
249;  568 

Givens  v.  Zerbst  (1921)  255  U.  S. 
n,  19;  263 

Gloucester  Ferry  Co.  v.  Pennsyl- 
vania (1885)  114  U.  S.  196;  208 

Gold  Washing  &  W.  Co.  v.  Keyes 
(1871)  96  U.  S.  199;  103 

Gompers  v.  Buck  S.  &  R.  Co. 
(1911)  221  U.  S.  418;  373 

Gonzales  v.  Williams  (1904)  192 
U.  S.  i;  327,  416 

Gordon  v.  United  States  (1864)  2 
Wallace  561  and  117  U.  S.  697; 

134,  J37,  138 
Gossard  Co.  v.  Crosby  (1906)  132 

la.  155;  499,  500 
Gould  v.  United  States  (1921)  255 

U.  S.  298;  393 
Governor  of  Georgia  v.  Madroza 

(1828)  i  Peters  no;  94 
Graf  ton  v.  United  States  (1907) 

206  U.  8.333;  262,395,396 
Grant  v.  United  States  (1913)  227 

U.  S.  74;  392 
Great  Falls  Manf.  Co.  v.  Fernald 

(1867)  47  N.  H.  444;  553 
Green,  In  re  (1890)  134  U.  S.  377; 

56 
Green  v.  Biddle  (1823)  8  Wheaton 

i;  456 


Green  v.  Frazier  (1920)  253  U.  S. 

Green' v.  Neal  (1832)  6  Peters  291; 
114 

Grenada  Lumber  Co.  v.  Missis- 
sippi (1910)  217  U.  S.  433;  576 

Gret  v.  Minnesota  (1869)  9  Wal- 
lace 35;  449 

Griffin  v.  Wilcox  (1863)  21  Ind. 
370;  391 

Grubel  v.  Nassauer  (1913)  210 
N.  Y.  149;  525 

Guardians  of  the  Poor  v.  Greene 
(1813)  5  Binney  (Pa.)  554;  378 

Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Ellis 
(1897)  165  U.  S.  150;  594,  610 

Gulf,  C.  &  St.  F.  Ry.  Co.  v.  Texas 
(1918)  246  U.  S.  58;  245,  248 

Guinn  v.  United  States  (1915)  238 
U.  S.  347;  613 

Gunn  v.  Barry  (1872)  15  Wallace 


610;  455 


H 


Haddock  v.  Haddock  (1906)  201 

U.  S.  562;  479,  480,  481 
Hadecheck    v.    Sebastian    (1915) 

239  U.  S.  3945  563,  605 
Hager    v.    Reclamation    District 

(1884)  in  U.  S.  701;  416,  513, 

547,  548,  557,  595 
Hale  v.  Henkel  (1906)  201  U.  S. 

43;  388,  389,  392 
Hall  v.  DeCuir  (1877)  95  U.  S. 

485;  247 
Hall  v.  Geiger-Jones  Co.    (1917) 

242!!.  S.  539;  575,  608 
Halladjian,  In  re  (1909)  174  Fed. 

834;  324 
Hamilton   v.    Brown    (1896)    161 

U.S.  256;  528 
Hamilton  v.  Kentucky  Distilleries 

Co.  (1919)  251  U.  S.  146;  268, 

270 
Hammer  v.  Dagenhart  (1918)  247 

U.S.  251;  185,232,233,235 
Hammerstem  v.  Lyne  (1912)  200 

Fed.  165;  326 
Hammond     v.     Herrick     (1817) 

Clarke  &  Hall's  Contested  Elec- 
tions 287;  179 
Hanley  v.  Donoghue  (1885)   116 

U.S.  i;  477 
Hanover    Nat.    Bk.    v.    Moyses 

(1902)  186  U.  S.  181;  337,  338 
Hans  v.  Louisiana  (1889)  134  U. 

S.  i;  94 


652 


TABLE  OF  CASES 


Hanull  v.  Talbott  (1897)  72  Mo. 

App.  22;  526 
Harkness  v.  Hyde  (1878)  98  U.  S. 

476;  516,  523 
Harris  v.  Rutledge  (1865)  19  la. 

388;  341 
Harrison  v.  St.  Louis  &  San  Fran. 

R.  R.  (1914)  232  U.  S.  318;  486 
Harryman  &  Schryver  v .  Roberts 

(1879)  52  Md.  64;  521 
Hartman  v.  Greenhow  (1880)  102 

U.  S.  672;  95 
Haswell's  Case  (1800)  Wharton's 

State  Trials  684;  357,  360 
Hatch  v.  Reardon  (1907)  204  U. 

S.  152;  123,  547 
Hatcher  v.  Dallas  (1911)  Tex.  133 

S.  W.  914;  567 
Hatfield    v.    Graham    (1914)    73 

W.  Va.  759;  127 
Hauenstein  v.  Lynham  (1879)  IO° 

U.  S.  483;  74 
Haugen  v.  Albina  L.  &  P.   Co. 

(1891)  21  Ore.  411;  568 
Haver  v.  Yaker  (1869)  9  Wallace 

32;  71 
Hawaii  v.  Maukithi  (1903)   190 

U.  S.  197;  301,  303 
Hawke  v.  Smith  (1920)  253  U.  S. 

221;  38,41,45 
Hawkins  v.  Bleakley  (1917)  243 

U.  S.  210;  583 
Hawley  v.  Maiden  (1914)  232  U. 

S.  i ;  537.  542 
Hawley  v.  Walker  (1914)  232  U. 

S.  718;  580 
Hawthorne  v.  California  (1864)  2 

Wallace  10;  454 
Hay  burn's  Case  (1792)  2  Dallas 

409;  120,  137,  139 
Hayes  v.  Missouri  (1887)  120  U. 

S.  68;  593 
Head    v.    Amoskeag    Manf.    Co. 

(1885)  113  U.  S.  9;  553 
Head   Money   Cases   (1884)    112 

U.  S.  580;  73,  184,  192 
Hebe  Co.  v.  Shaw  (1919)  248  U.  S. 

297;  576 
Heim  v.  McCall  (1915)  239  U.  S. 

175;  592 
Henderson  v.  Stamford  (1870)  105 

Mass.  504;  525,  526 
Henderson    Bridge   Co.    v.    Ken- 
tucky (1897)  166  U.  S.  150;  537 
Hendrick  v.  Maryland  (1915)  235 

U.  S.  610;  209^  210 


Henfield's  Case  (1793)  Fed.  Cas.  6, 

360;  378 
Hepburn  v.  Ellzey  (1805)  2  Cranch 

445!  307 
Hepburn   v.    Griswold    (1869)    8 

Wallace  603;  201,  407,  413 
Herbert  v.    Bicknell    (1914)    233 

U.  S.  70;  528 
Herndon  v.  Chicago,  R.  I.  &  Pac. 

Ry.  (1910)  218  U.  S.  135;  486 
Herndon  v.  Chicago  &  R.  I.  &  P. 

Ry.  Co.  (1910)  218  U.  S.  135; 

590 
Hibben  v.  Smith  (1903)  191  U.  S. 

310;  408 
Higginsf.  Cal.  Pet.  Co.  (1895)  JO9 

Calif.  304;  341 
Higgins  v.  Keuffel  (1891)  140  U.  S. 

428;  339 
Hill,  Ex  parte  (1863)  38  Ala.  429; 

Hill  v.  Sunderland   (1831)  3  Vt. 

507;  140 
Hilton  v.  Merritt  (1884)  no  U.  S. 

97;  415 

Hinckley  v.  Kattle  River  R.  Co. 

(1897)  70  Minn.  105;  527 
Hipolite  Egg  Co.  v.  United  States 

(1911)  220  U.  S.  45;  386 
Hodges  v.   United  States   (1906) 

203  U.  S.  i ;  424,  498,  503 
Hoe  v.  Mamieson  (1897)  166  U.  S. 

395;  307 
Hogan    v.    Reclamation    District 

(1884)  in  U.  S.  701;  512,  533 
Hoke  v.  United  States  (1913)  227 

U.  S.  308;  208,  230 
Holden  v.  Hardy  (1896)  169  U.  S. 

366;  400,   512,   513,   515,   577, 

606,  611 
Hollingsworth  v.  Virginia  (1798) 

3  Dallas  378;  38 
Holmes,  Ex  parte  (1840)   12  Vt. 

631;  488 
Holmes    v.    Jennison    (1840)     14 

Peters  540,  541 ;  80 
Holt  i'.   Alloway   (1827,   Ind.)    2 

Blackf.  1 08;  521 
Holt  v.  United  States  (1910)  218 

U.  S.  245;  390 
Hoi  ton  v.  City  of  Camilla  (1910) 

134  Ga.  560;  534 
Home  Life  Ins.  Co.  v.  Dunn  (1873) 

19  Wallace  214;  103 
Home  of  the  Friendless  v.  Rouse 

(1869)  8  Wallace  430;  461 


TABLE  OP  CASES 


653 


Home  Tel.   Co.   v.   Los  Angeles 

(1913)  227  U.  S.  278;  427,  463, 

504,  592 
Hooper  v.  California  (1895)    X55 

U.  S.  648;  211,  246,  484 
Hopkins  v.  United  States  (1894) 

4  App.  Cas.  (D.  C.)  430;  396 
Hoppin  v.  Jenckes  (1867)  8  R.  I. 

4535  *74 
Hopt  v.  Utah  (1884)  no  U.  S.  574; 

386,  409,  531 
Hornbuckle  v.  Toombs  (1874)  l& 

Wallace  648;  151 
Houghbridge  v.  Hams  (1871)  42 

Ga.  501 ;  553 
Houston  &  Tex.  Cent.  R.  R.  Co. 

v.  Texas  (1900)   177  U.  S.  66; 

442 
Houston,  E.  &  W.  T.  Ry.  Co.  v. 

United  States  (1914)  234  U.  S. 

342;  236,  237 
Hovey  v.  Elliott  (1897)  167  U.  S. 

4°95  514 
Howard  v.  Kentucky  (1906)  200 

U.  S.  164;  531 
Hubbard  v.  Lowe  (1915)  226  Fed. 

135;  185 
Hudson  v.   Jennings   (1910)    134 

Ga.  3735  567 
Hudson     County     W.     Co.     v. 

McCarter  (1908)  209  U.  S.  349; 

246,  473 
Huling  v.  Kaw  Valley  Co.  (1889) 

130  U.  S.  559;  528,  558 
Hung  Hang,  Ex  parte  (1883)  108 

U.  S.  552;  101 
Hunter  v.  Pittsburgh  (1907)  207 

U.S.  161;  460 
Huntington  v.  Attrill  (1893)   146 

U.  S.  657;  476 
Huntley  v.  Baker  (1884,  N.  Y.) 

33  Hun  578;  525,  526 
Hurtado  v.  California  (1884)  no 

U.  S.  516;  123,  406,  507,  508, 

510,511,530,560 
Hutchmson    Ice    Cream    Co.    v. 

Iowa  (1916)  242  U.  S.  153;  576 
Hyatt  v.  Corkran  (1903)  188  U.  S. 

691;  490 
Hyde  v.  United  States  (1912)  225 

U.S.  347;  383 
Hylton  v.  United  States,  3  Dallas 

171;  120,  186,  191 


Illinois    Cent.    Ry.    v.    Decatur 
(1893)  147  U.  S.  190;  536 


Illinois  Cent.  R.  R.  Co.  v.  Inter- 
state Comm.  Comm.  (1907)  206 
U.  S.  441;  574 

Illinois  Cent.  R.  R.  Co.  v.  Public 
Util.  Com.  (1918)  245  U.  S. 
493J  237 

Inman  Steamship  Co.  v.  Tinker 
(1876)  94  U.  8.238;  443 

Insurance  Co.  v.  Morse  (1874)  2O 
Wallace  445;  485 

International  Harvester  Co.  v. 
Kentucky  (1914)  234  U.  S.  579; 

517 

International  Harvester  Co.  v. 
Missouri  (1914)  234  U.  S.  199; 
608,  611 

International  Paper  Co.  v.  Massa- 
chusetts (1918)  246  U.  S.  135; 
253 

International  Text  Book  Co.  v. 
Ligg  (1910)  217  U.  S.  91;  210, 
246,  249,  484 

Inter-Ocean  Publishing  Co.  v. 
Associated  Press  (1900)  184 
111.  438;  570 

Interstate  Comm.  Comm.  v. 
Chicago,  R.  I.  &  P.  Ry.  Co. 
(1910)  218  U.  S.  88;  154,  217 

Interstate  Com.  Com.  v.  Cincin- 
nati N.  O.  &  T.  P.  R.  Co.  (1897) 
167  U.  S.  479,  499;  144,  153 

Interstate  Comm.  Comm.  v.  Il- 
linois Cent.  R.  R.  Co.  (1910) 
215  U.  8.452;  154,217 

Interstate  Comm.  Comm.  v. 
Louisville  &  N.  R.  R.  Co.  (1913) 
227  U.  S.  88;  217,  410,  416 

Interstate  Comm.  Comm.  v.  Union 
Pac.  R.  R.  Co.  (1912)  222  U.  S. 
541;  217,410,416 


Jackett  v.  Bower  (1901)  62  Neb. 

232;  289 
Jackson,  Ex  parte  (1877)  96  U.  S. 

727;  340,341,391 
Jackson     v.     Chew     (1827)      12 

Wheaton  153;  114 
Jackson    v.    Lamphire    (1830)    3 

Peters  280;  455 
Jackson  v.  Rogers  (1683)  2  Show 

327;  568 
Jacob  v.  Roberts  (1912)  223  U.  S. 

261;  528 
Jacob  Ruppert  v.  Caffey  (1920) 

251  U.  S.  264;  429 


654 


TABLE  OF  CASES* 


Jacobson  v.  Massachusetts  (1905) 

197  U.  S.  ii ;  563 
James,  Matter  of  (1894)  *44  N- Y- 

6;  547 
James  v.  Bowman  (1903)  190  U.  S. 

127;  428,  614 
Japanese  Immigrant  Case  (1903) 

189  U.  S.  86;  416,  514 
Jeffers  v.  Fair  (1862)  33  Ga.  347; 

258 
Jeffrey  Mfg.  Co.  v.  Blagg  (1915) 

235  U.  S.  571;  594,  611 
Jenks  v.  Turpin  (1884)  L.  R.  13 

Q.  B.  0.505;  566 
Jochen,  Ex  parte  (1919)  257  Fed. 

200;  264 
Johannessen    v.     United     States 

(1912)  225  U.  S.  227;  324,  449 
Johnson   v.    Browne    (1907)    205 

U.  S.  309;  73 
Johnson   v.    M'Intosh    (1823)    8 

Wheaton  543;  280,  316 
Johnson  v.  Sayre  (1895)  158  U.  S. 

109;  263 
Johnson    v.    Southern    Pac.    Co. 

(1904)  196  U.  S.  i;  226 
Jones  v.  Brim  (1897)   165  U.  S. 

i 80;  564 
Jones  v.  City  of  Portland  (1917) 

245  U.  S.  217;  534.5.35 
Jones  v.  Horth  Georgia  El.  Co. 

(1906)  125  Ga.  6i8;568 
Jones  v.  United  States  (1890)  137 

U.  S.  202;  281,383 
Jordan  v.    Massachusetts    (1912) 

225  U.  S.  167;  530 
Julian  v.  Central  Trust  Co.  (1904) 

193  U.  S.  93;  107 
Juragua  Iron  Co.  v.  United  States 

(1909)  212  U.  S.  297;    III 

K 

Kahn    v.    Anderson    11921)    255 

U.  S.  i;  262,  263,  267 
Kane  v.  New  Jersey  (1916)  242 

U.  vS.  160;  519 
Kansas  v.   Colorado    (1902)    185 

U.  S.  125,  (1907)  206  U.  S.  46; 

97,  148 
Kansas  v.  United  States   (1907) 

204  U.  S.  331;  94 
Kansas  City  Ry.  v.  Kansas  (1916) 

240  U.  S.  227;  253 
Kansas  Indians  (1866)  5  Wallace 

Keeney  v.  New  York  (1912)  222 
U.  S.  525;  601 


Keith  v.   Kellerman   (1909)    169 

Fed.  196;  499 
Kelley  v.  Rhoads  (1903)  188  U.  S. 

i;  212,  249 
Kemmler,  In  re  (1890)  136  U.  S. 

436;  402 
Kendall  v.  United  States  (1838) 

12  Peters  524;  125,  127 
Kentucky  v.  Dennison  (1860)  24 

Howard  66;  127,  487,  488,  491 
Kentucky  v.   Powers  (1906)   201 

U.  S.  i;  103 
Kepner  v.   United  States   (1904) 

195  U.  S.  100;  396,  398 
Ker  v.  Illinois  (1886)   119  U.  S. 

436;  81 
Kidd  v.  Pearson  (1888)  128  U.  S. 

i;  212 
Kielly  v.  Carson  (1841)  4  Moore's 

P.  C.  63;  172 
Kilbourn    v.    Thompson     (1880) 

103  U.  S.  168;  169,   170,  171, 

176 
Kimberly  v.  Butler   (1869)   Fed. 

Cas.  No.  7,  777;  176 
King  v.  Mullins  (1898)  171  U.  S. 

404;  600 
King  of  the  Two  Sicilies  v.  Wilcox, 

(1850)   7  State  Trials  (N.  S.) 

1049;  390 
Kirby  v.  United  States  (1899)  174 

U.  S.  47;  401 
Kirmeyer  v.   Kansas   (1915)   236 

U.  S.  568;  208 
Kirtland  v.  Hotchkiss  (1879)  100 

U.  S.  491;  542 
Kneedler  v.  Lane  (1863)  45  Pa. 

St.  238;  258 
Knowles  v.  Gaslight  &  Coke  Co. 

(1873)  19  Wallace  58;  522 
Knowlton  v.    Moore   (1900)    178 

U.  S.  41;  189,   191,   192,   193, 

199,  544 
Knoxville  v.  Knoxville  Water  Co. 

(1909)  212  U.  S.  i;  572,  573 
Knoxville  Iron  Co.  v.   Harbison 

(1901)  183  U.S.  13;  584 
Kohl  v.  United  States  (1875)  91 

U.  S.  367;  224,  306,  419,  420, 

Kollock,  In  re  (1897)   165  U.  S. 
Krug  v.  Missouri  (1898)  170  U.  S. 


221;  449 

Kurtz  v.  M 

487;  262 


offitt  (1865)  115  U.  S. 


TABLE  OP  CASES 


655 


La   Abra   Silver    Mining    Co.    v. 

United  States  (1899)  175  U.  S. 

423;  83 
La  Belle  Iron  Works  v.  United 

States  (1921)  41   Sup.  Ct.  R. 

528;  418 
Ladd  v.  Southern  Cotton  Press  Co. 

(1880)  53  Tex.  172;  570 
Lafayette    Ins.    Co.    v.    French 

(1855)  1 8  Howard  404;  517 
Lake    Monroe,    The    (1919)    250 

U.  S.  246;  268 
Lake  Shore  &  M.   S.   R.   R.  v. 

Smith  (1898)  173  U.  S.  684;  474 
Lamar  v.  United  States  (1916)  240 

U.  S.  60;  383 
Lampito,  In  re  (1916)  232  Fed. 

382;  324 
Lascelles  v.   Georgia    (1893)    J48 

U-  S.  537;  492 
Latmette  v.  St.  Louis  (1912)  201 

Fed.  676;  224,  340 
La  Tourette  v.  McMasters  (1919) 

248  U.  S.  465;  576 
Latterson  v.  Bark  Eudora  (1903) 

190  U.  S.  169;  584 
Laura,  The  (1885)  114  U.  S.  411; 

69 

Laurel  Hill  Cemetery  v.  San  Fran- 
cisco (1910)  216  U.  S.  358;  563 
Lawton  v.  Steele  (1894)  *52  U.  S. 

133;  562 
Leeper  v.  Texas  (1891)  139  U.  S. 

468;  417 
Legal  Tender  Case   (Juilliard  v. 

Greenman)    (1884)    no   U.    S. 

421;    202,  203 

Legal    Tender    Cases    (Knox    v. 

Lee;  Parker  v.  Davis)  (1870)  12 

Wallace    457;  148,     149,    202, 

407,  414,  472 

Lehigh  Valley  R.  R.  v.  Pennsyl- 
vania (1892)  145  U.  S.  192;  239 
Lehigh  Val.  R.  Co.  v.  Public  Serv. 

Com.  (1921)  272  Fed.  758;  239 
Leisy  v.  Hardin  (1890)  135  U.  S. 

100;  213,  234,  567 
Leloup  v.  Mobile  (1888)  127  U.  S. 

640;  210,  249 
Lemieux    v.    Young    (1909)    211 

U.  S.  489;  575,  608 
Lewis  v.  United  States  (1892)  146 

U.  S.  370;  386,  531 
L'Hote  v.  New  Orleans  (1900)  177 

U.  S.  587;  567 


License    Cases,    The    (1847)    5 

Howafd  504;  74,  243,  465 
Lindsley  v.  Natural  Carbonic  Gas 

Co.  (1911)  220  U.  S.  61;  594, 

609 
Live  Stock  Comm.   Co.  v.   Live 

Stock  Exch.  (1892)  143  111.  210; 

570 
Loan  Association  v.  Topeka  (1875) 

20  Wallace  655;  120,  534 
Lochner  v.  New  York  (1905)  198 

U.  S.  45;  578,  579 
Logan  v.  United  States  (1892)  144 

U.S.  263;  335,397 
Londoner  v.   City  &  County  of 

Denver  (1908)  2ioU.  S.  373;  548 
Lone  Wolf  v.   Hitchcock    (1903) 

187  U.  8.553;  316,317 
Long  Island  Water  Supply  Co.  v. 

Brooklyn  (1896)  166  U.  S.  685; 

462,  550 
Looneyp.  Crane  (1917)  245  U.  S. 

178;  253 
Lottery  Case  (1903)  188  U.  S.  321; 

211,229,  231,  410 
Lotto wana,  The  (1874)  21  Wal- 
lace 558;  108,  109 
Loughborough  v.  Blake  (1820)  5 

Wheaton  317;  297,  299,  306 
Loughlin    v.    City    of  Portland 

(1914)  ii i  Me.  486;  534 
Louis  De  Jouge  &  Co.  v.  Breuker 

&  Kessler  Co.  (1910)  182  Fed. 

150;  339 

Louisiana  v.  Jumel  (1882)  107 
U.  S.  711;  94 

Louisiana  v.  New  Orleans  (1883) 
1091;.  S.  285;  456 

Louisville  etc.,  R.  Co.  v.  Missis- 
sippi (1890)  133  U.  S.  587;  565 

Louisville  &  J.  Ferry  Co.  v.  Ken- 
tucky (1909)  1 88  U.  S.  385;  537 

Louisville  &  N.  R.  Co.  v.  Barber 
Asphalt  Co.  (1905)  197  U.  S. 

Louisville  &  N.  R.  R.  Co.  v.  Rail- 
road Comm.  of  Ala.  (1912)  196 
Fed.  800;  572 

Lovato  v.  New  Mexico  (1916)  242 
U.  S.  199;  397 

Lowe,  In  re  (1863)  I  Bartlett's 
Contested  Elections  41 8;  158 

Loewe  v.  Lawler  (1908)  208  U.  S. 
274;  219 

Lowells.  Boston  (1873)  in  Mass. 
454;  535,  553 


656 


TABLE  OF  CASES 


Luria  v.  United  States  (1913)  231 

U.  S.  9;  324,  404 
Luther,     v.     Borden     (1849)      7 

Howard  i;  129,  445 
Luxton    v.    North    Riv.    B.    Co. 

(1894)  153  U.  8.525;  224,551 
Lyon's    Case    (1798)    Whar ton's 

State  Trials  333;  357,  360 

M 

Mackay  Tel.  &  Cable  Co.  v.  Little 

Rock  (1919)  250  U.  S.  94;  254 
Mackenzie  v.   Hare    (1915)    239. 

U.  S.  299;  329 
Maddox  v.  Neal  (1885)  45  Ark. 

12 1 ;  600 
Maddux  v.  United  States  (1885) 

20  Ct.  Cl.  199;  in 
Mager  v.  Grima  (1850)  8  Howard 

490;  544 
Magoun  v.  Illinois  T.  &  S.  Bank 

(1898)  170  U,  S.  283;  601 
Maguire   v.    Trefrey    (1920)    253 

U.  S.  12;  544 
Mahon  v.  Justice  (1888)  127  U.  S. 

700;  491 
Maine  v.  G?and  Trunk  Ry.  Co. 

(1891)  142  U.  S.  217;  250 
Mali  v.  de  Mali  (1890)  120  N.  Y. 

485;  525 
Malloy  v.  South  Carolina  (1915) 

237  U.  S.  1 80;  448 
Manigault  v.  Springs  (1905)   199 

U.  S.  473;  245,  472 
Marbles  v.  Creecy  (1909)  215  U. 

S.  63;  514 
"""••Marbury    v.   Madison    (1803)    I 

Cranch  137;  98,  118,  125,  128 
Marcus    Brown    Holding    Co.    v. 

Feldman    (1921)    41    Sup.    Ct. 

465;  123,  473,  569 
Mar  in  v.  Texas  (1906)  200  U.  S. 

316;  587 
Marshall  v.   Gordon    (1917)    243 

U.  S.  521;  172,  173 
Martin  v.  Hunter's  Lessee  (1816) 

i  Wheaton  304;  148 
Martin    v.    Waddell     (1842)     16 

Peter 5367;  280 
Marvin  v.   District  of  Columbia 

(1907)  205  U.  S.  135;  597 
Marvin  v.  Trout  (1905)  199  U.  S. 

212;  566 
Mason*;.  MLsouri  (1900)  179 U.  S. 

328;  599 
Mason  v.  United  States  (1917)  244 

U.S.  362;  390 


Massachusetts,  In  re  (1905)  197 

U.  S.  482;  96 
Masser  Publishing  Co.  v.  Patten 

(1917)  246  Fed.  24;  370 
Mattox  v.   United  States   (1895) 

156  U.  S.  237;  401 
Maubourquet  v.  Wyse  (1867)  Ir. 

Rep.  C.  L.  471;  527 
Maxwell  v.  Dow  (1900)  176  U.  S. 

58i;  332,  333,   335»   336,   386, 

530 
May  &  Co.  v.  New  Orleans  (1900) 

178  U.  S.  496;  213 
Maynard  v.  Hill  (1888)  125  U.  S. 

190;  287,  453 
McAllister  v.  United  States  (1891) 

141  U.  S.  174;  284 
McCabe  v.  Atchison  T.  &  S.  F. 

Ry.  Co.  (1914)  235  U.  S.  151; 

3H 

McCardle,  Ex  parte  (1868)  7  Wal- 
lace 506;  99,  140 
McCoy  v.  Union  Elevated  R.  R. 

Co.  (1918)  247  U.  S.  354;  557 
McCracken  v.  Hay  ward  (1844)  2 

Howard  608,  612;  453,  454 
McCray  v.  United  States  (1904) 

195  U.  S.  27;  184,  417 
M'Culloch  v.  Maryland  (1819)  4 

Wheaton   316,    4O7J  14^5,    146, 

147,  148,  180,  181,  201,  202 
McDermott  v.  Wisconsin  (1913) 

228  U.  S.  115;  231 
McDonald  v.  Mabee  (1917)  243 

U.  S.  90;  524,  526,  527 
McDonald       v.       Massachusetts 

(1901)  180  U.  S.  311;  402,  448, 

605 
McElrath  v.  United  States  (1880) 

102  U.  S.  426;  404 
McGuire  v.  State  (1898)  76  Miss. 

504;  448 
McKane  v.   Durston   (1894)    X53 

U.  S.  684;  531 
McKean,     Ex    parte     (1878)     3 

Hughes  (Fed.)  23;  489 
McKinley  v.  United  States  (1919) 

249  U.  S.  397;  270 
McLean  v.  Arkansas  (1909)  211 

U.  S.  539;  584 
McLean  v.  Denver  &  Rio  Grande 

R.  R.  Co.  (1906)  203  U.  S.  38; 

287 
McNeill    v.    Southern    Ry.    Co. 

(1906)  202  U.  S.  543;  247 
McPherson  v.  Blacker  (1892)  146 

U.  S.  i;  56,  132 


TABLE  OF  CASES 


657 


Memphis  v.  Eulve  (1919,  Tenn.) 

214  S.  W.  71;  467 
Merrick  v.  Giddings  (1879)  I  M. 

&M.  (Dist.  of  Col.)  56;  176 
Merrick  v.  Halsey  (1917)  242  U. 

S.  568;  575 
Merryman,      Ex     parte      (1861) 

Taney's  Rep.  246;  85,  262,  271 
Metropolitan    Life    Ins.    Co.    v. 

New  Orleans  (1907)  205  U.  S. 

395;  542 
Miantinomi,  The  (1855)  Fed.  Cas. 

No.  9,521;  341 
Michigan    Cent.    R.    R.    Co.    v. 

Powers  (1906)  201  U.  S.  245;  600 
Middleton  v.  Texas  P.  &  L.  Co. 

(1919)  249  U.  S.  152;  584 
Miller  v.  Little  (1874)  47  Calif. 

348;  289 
Miller  v.  United  States  (1913)  41 

App.  D.  C.  52;  142 
Miller  v.  Wilson  (1915)  236  U.  S. 

3731  580 

Milligan,  Ex  parte  (1866)  4  Wal- 
lace 2;  62,  63,  261,  262,  263, 

268,  364 

Milwaukee  Electric  Ry.  v.  Rail- 
road   Commission    (1915)    238 

U.  S.  174;  463 
Milwaukee     Publishing     Co.     v. 

Burleson  (1921)  255  U.  S.  407; 

370 
Miner  v.  Markham  (1886)  28  Fed. 

387;  175 
Minneapolis  &  St.  L.  R.  R.  Co.  v. 

Minnesota  (1904)  193  U.  S.  53; 

574 
Minnesota  v.  Northern  Securities 

Co.  (1902)  184!!.  S.  199;  96 
Minnesota  Rate  Case  (1913)  230 

U.  S.  352;  235,  236,  245,  248, 

Minnesota  &  St.  L.  R.  R.  v.  Bom- 

balis  (1916)  241  U.  S.  2115404 
Minor   v.    Happersett    (1874)    2I 

Wallace  162;  334,  431,  615 
Mirzan,  Ex  parte  (1887)  119  U.  S. 

584;  102 
Mississippi  v.  Johnson   (1866)   4 

Wallace  475;  125,  126 
Mississippi  v.  Stanton  (1867)  154 

U.  S.  554;  131 
Missouri  v.   Holland    (1920)    252 

U.  S.  416;  75,  148 
Missouri   v.    Illinois    (1901)    180 

U.  S.  208,  (1906)  200  U.  S.  496, 

(1906)  202  U.  S.  600;  97 


Missouri  v.  Lewis  (1879)  101  U.  S. 

22;  593,  599 
Missouri,    K.    &    T.   Ry.   Co.  v. 

Texas  (1918)  245  U.  S.  484;  248 
Missouri  Pac.  Ry.  .Co.  v.  Humes 

(1885)  115  U.  S.  512;  564 
Missouri  Pac.  Ry.  Co.  v.  Kansas 

(1919)  248  U.  8.276;  38 
Missouri    Ry.     Co.    v.    Larabee 

(1914)  234  U.  S.  459;  610 
Missouri  Pac.  Ry.  Co.  v.  Nebraska 

(1896)  164  U.  S.  403;  419,  550, 

552 
Missouri  Rate  Case   (1913)   230 

U.  S.  474;  239 
Mitchell  v.   Harmony   (1851)    13 

Howard  115;  269 
Mobile  County  v.  Kimball  (1880) 

102  U.  S.  691;  595 
Mollari,   In  re   (1916)    239   Fed. 

416;  324 
Montaire  Mining  Co.  v.  Columbus 

Co.  et  al.  (1918,  Utah)  174  Pac. 

172;  554 
Montana  M.  Co.  v.  St.  Louis  M. 

Co.  (1907)  204  U.  S.  204;  288 
Moore  v.  Illinois  (1852)  14  Howard 

13;  395 

Moore  &  Tierney  v.  Roxford  Knit- 
ting Co.  (1918)  250  Fed.  276;  268 

Moores,  Ex  parte  (1870)  64  N.  C. 
802;  262 

Morgan  v.  King  (1866)  35  N.  Y. 

454;  555 
Morgans  S.  S.  Co.  v.  Louisiana 

(1886)  n8U.  S.  455;  245 
Mormon  Church  v.  United  States 

(1890)  136  U.  S.  i;  284,  285, 
286,  288,  298,  301 

Moses  Taylor,  The  (1866)  4  Wal- 
lace 411;  108 

Moss  v.  Fitch  (1908)  212  Mo.  484; 
525,  526 

Mountain  Timber  Co.  v.  Wash- 
ington (1917)  243  U.  S.  219; 
130,  445,  584 

Moyer  v.  Peabody  (1909)  212 
U.  S.  78;  261,  514 

Mugler  v.  Kansas  (1887)  123  U. 
S.  623;  234,  566,  605 

Muller  v.  Oregon  (1908)  208  U.  S. 
412;  580,  606,  611 

Municipal  Gas  Co.  v.  Public  Serv. 
Comm.  (1919)  225  N.  Y.  89; 
125 

Munn  v.  Illinois  (1876)  94  U.  S. 
113;  408,  466,  513,  568,  570,  607 


658 


TABLE  OF  CASES 


Murphy  v.  California  (1912)  225 

U.  S.  623;  600 
Murphy  v.   Ramsey    (1885)    114 

U.  S.  15;  286,  288 
Murray  v.   Hoboken   Land   and 

Improvement    Co.    (1855)     *8 

Howard    272;  406,    408,    415, 

508,  510 
Muskrat  v.  United  States  (1911) 

219  U.  S.  346;  132,  135 
Mutual  Film  Corp.  v.  Industrial 

Comm.  of  Ohio  (1915)  236  U.  S. 

230;  372 
Mutual  Loan  Co.  v.  Martell  (1911) 

222  U.  S.  225;  584,  594,  611 
Myers  v.  Anderson  (1915)  238  U. 

S.  368;  613 

N 

National  Bank  v.  Yankton  County 

(1879)  101  U.  S.  129;  288 
National  Prohibition  Cases  (1920) 

253  U.  S.  350;  37,  38,  45,  48, 

131,429,430,615 
Neagle,  In  re  (1890)  135  U.  S.  i; 

68,  106 
Neal  v.  Delaware  (1880)  103  U.  S. 

370;  587,  592 
Nelson,  In  re  (1895)  69  Fed.  712; 

125 
New  v.  United  States  (1917)  245 

Fed.  710;  344 
Newbersy  v.  United  States  (1921) 

41  Sup.  Ct.  R.  469;  164 
New     Hampshire     v.     Louisiana 

(1883)  108  U.  S.  76;  93,  97 
New  Jersey  v.   Wilson   (1812)   7 

Cranch  164;  461 
New  Orleans  v.  Houston  (1886) 

119  U.  S.  265;  461 
New   Orleans  v.   Steamship   Co. 

(1874)  20  Wallace  387;  62 
New  Orleans  v.   Stempel   (1899) 

175  U.  S.  309;  542,  543 
New  Orleans  Gas  Co.  v.  Louisiana 

Light  Co.  (1885)  115  U.  S.  650; 

460 
New  Orleans  Gas  Light  Co.   v. 

Drainage  Commission  (1905)  197 

U.S.  453;  563 
New  York  v.  Miln  (1837)  n  Peters 

102;  207,  243 
New  York  v.  Sohmer  (1915)  235 

U.  S.  549;  541 
New  York  ex  rel.  Met.  St.  Ry.  Co. 

v.  Tax.  Com'rs.  (1905)  199  U.  S. 

i;  537 


New  York  v.  Van  De  Carr  (1905) 
199  U.  S.  552;  605 

New  York  ex  rel.  New  York  Cent. 
&  H.  R.  R.  R.  Co.  v.  Miller 
(1906)  202  U.  S.  584;  537 

New  York  Cent.  &  H.  R.  R.  R.  v. 
United  States  (1909)  212;  217 

New  York  Cent.  R.  R.  Co.  t>. 
White  (1917)  243  U.  S.  188;  582 

New  York  Indians  (1866)  5  Wal- 
lace 761;  314 

New  York  Life  Ins.  Co.  v. 
Cravens  (1900)  178  U.  S.  389; 

211 

Nicol  v.  Ames  (1899)   J73  U.  S. 

509;  187 
Nielson,    Ex    parte    (1889)     131 

U.  S.  176;  396 
Noble    State    Bank    v.    Haskell 

(1911)  219  U.  S.  104;  576,  584, 

608 
Norfolk  W.  R.  Co.  v.  Sims  (1903) 

191  U.  S.  441;  210 
Northern  Pacific  Ry.  r.  Duluth 

(1908)  208  U.  S.  583;  465 
Northern     Pac.     Ry.     v.  North 

Dakota  (1915)  236  U.  S.  585; 

56i,  571 
Northern  Pac.  Ry.  Co.  v.  North 

Dakota  (1919)  250  U.  S.  135; 

268,  270,  466 
Northern  Securities  Co.  v.  United 

States  (1904)  193  U.  S.  197;  218 
Northwestern    Laundry    v.    Des 

Moines  (1916)  239  U.  S.  486; 

568,  605 
Northwestern   Life   Ins.    Co.    v. 

Riggs  (1906)  203  U.  S.  243;  515 
Norton  v.  Shelby  County  (1886) 

118  U.  S.  425,  442;  123 
Norwood  v.  Baker  (1898)  172  U. 

S.  269;  595,  596,  598 

O 

Oceanic  Navigation  Co.  v.  Strana- 
han  (1909)  214  U.  S.  320;  154, 

214,  385 
Ogden    v.    Saunders    (1827)     12 

Wheaton  213;  338,  453 
Ohio  v.  Cox  (1919)  257  Fed.  334; 

3.8 
Ohio  v.  Dollison  (1904)  194  U.  S. 

445;  600 
Ohio  v.   Russell  (1900)    10  Ohio 

Dec.  255;  160 
Ohio  &  Miss.  R.  R.  Co.  v.  Wheeler 

(1861)  i  Black  286;  102 


TABLE  OF  CASES 


659 


Ohio  Oil  Co.  v.  Indiana  (1900)  177 

U.  S.  190;  577 
Old  Wayne  Mutual  Life  Assoc.  v . 

McDonough  (1907)  204  U.  S. 

8;  477 
Olmstead    v.    Camp    (1866)    33 

Conn.  532;  553 
Opinion  of  the  Court  (1879)  58 

N.  H.  623;  536 
Opinion  of   Justices    (1903)    182 

Mass.  605;  534 
Opinion  of  the  Justices  (1910)  204 

Mass.  607;  552 
Opinion  of  Justices    (1912)    211 

Mass.  624;  534 
Orleans    v.    Phrebus    (1837)     II 

Peters  175;  109 

Osborne  v.  Mobile  (1872)  16  Wal- 
lace 479;  249 
Otis  v.  Parker  (1903)   187  U.  S. 

606;  605 
Ouseley  v.  Lehigh  Val.  T.  &  S.  D. 

Co.  (1897)  84  Fed.  602;  525 
Owens  v.  Speed  (1820)  5  Wheaton 

420;  1 6,  25 
Owensboro     National     Bank      v. 

Owensboro    (1899)    173    U.    S. 

664;  540 


Pace  v.  Burgess  (1875)  92  U.  S. 
372;  196 

Pacific  Exp.  Co.  v.  Seibert  (1892) 
142  U.  S.  339;  600 

Pacific  Ins.  Co.  v.  Soule  (1868)  7 
Wallace  433;  186 

Pacific  Railway  Commission,  In  re 
(1887)  32  Fed.  241;  133 

Pacific  Railroad  Removal  Cases 
(1885)  115  U.  S.  i;  224,  268 

Pacific  States  T.  &  T.  Co.  v.  Ore- 
gon (1912)  223  U.  S.  118;  130 

Pacific  Telephone  Co.  v.    Oregon 


(1912)  223  U.S.  118:44; 
U.  S.  80;  443 


Packet  Co.  v.  Keokuck  (1877)  95 


Packet  Co.  v,  St  Louis  (1879)  100 

U.  S.  423;  443 
Page  v.  Matthews  (1867)  40  Ala. 

5475  140 
Palliser,  In  re  (1890)   136  U.  S. 

257;  383 
Pappens  v.  United  States  (1918) 

252  Fed.  55;  — 
Parker  v.   Kaughman    (1865)   34 

Ga.  136;  259 


Parsons  v.  Armor  (1830)  3  Peters 

413;  404 
Parsons  v.  Bedford  (1830)  3  Peters 

433;  404 
Passenger  Cases  (1849)  7  Howard 

283;  74,  243 
Patsone   v.    Pennsylvania    (1914) 

232  U.S.  I39J588 
Patterson  v.  Colorado  (1907)  205 

U.  S.  454;  371 
Patterson  v.  Kentucky  (1878)  97 

U.  S.  501 ;  338,  564 
Patton  v.   Richmond    (1876)    28 

La.  Ann.  795;  289 
Paul  v.  Virginia  (1868)  8  Wallace 

168;  211,  483,  484 
Pawhuska  v.   Pawhuska  Oil  Co. 

(1919)  250  U.  S.  393;  460 
Payne  v.  Kansas  (1918)  248  U.  S. 

112;  576 
Peck  &  Co.  v.  Lowe  (1918)  247 

U.S.  165;  197 
Pedro,  The  (1899)  175  U.  S.  354; 

129 
Peikv.  Chicago  etc.  Ry.  Co.  (1876) 

94  U.  S.  164;  247,  570 
Pembina  Mining  Co.  v.  Pennsyl- 
vania (1888)  125  U.  S.  181;  246, 

484,  589 
Pennoyer  v.  McConnaughy  (1891) 

140  U.S.  i;  95,  125 
Pennoyer  v.  Neff  (1877)  95  U.  S. 

714;  477,  478,  516,  522,  528 
Pennyslvania  F.  Ins.  Co.  v.  Gold 

Issue  M.  &  M.  Co.  (1917)  243 

U.S.  93;  517 
Pennsylvania  Gas  Co.  v.  Public 

Service  Com.  (1920)  252  U.S.  23; 

247 

Pensylvania    Hospital    v.    Phila- 
delphia  (1917)   245  U.   S.   20; 

471,  551- 

Pensacola    Tel.    Co.    v.    Western 
Un.  Tel.  Co.  (1877)  96  U.  S.  i; 

2IO 

Peonage  Cases  (1903)    123   Fed. 

6715498 
People  v.  Beekes  Dairy  Co.  (1918) 

222  N.  Y.  416;  474 
People    v.    Board    of    Education 

(1910)  245  111.  334;  344 
People  v.  Budd  (1889)  117  N.  Y. 

i;  568 
People    v.     Compagnie     Ge"ne"ral 

Transatlantique  (1882)   107  U. 

S.  59;  249 


66o 


TABLE  OF  CASES 


People  v.  Court  of  Sessions  (1894) 

141  N.  Y.  288;  70 
People  v.  Crosswell  (1804)  3  John- 
son's Cases  337;  362 
People  v.  Curtis  (1872)  50  N.  Y. 

321;  488 
People  v.  Gallagher  (1883)  93  N. 

Y.  438;  565 
People  v.  Griffith  (1910)  245  111. 

532;  547 
People  v.  Hayes  (1894)  140  N.  Y. 

484;  447 
People    v.    Klinck    Packing    Co. 

(1915)  214  N.  Y.  121;  581 
People  ex  rel.  Durham  Realty  Co. 

v.   LaFetra   (1921)   230  N.  Y. 

429;  569 
People  v.  Llouger  (1908)  14  Porto 

Rico  534;  288 
People  v.  Lochner  (1904)  177  N. 

Y.  145;  578 
People  v.  McLeod  (1841)   i  Hill 

(N.  Y.)  377;  106 
People  v.  Pearson  (1903)  176  N. 

Y.  201 ;  344 
People    v.    Roberts    (1896)     148 

N.  Y.  360;  124 
People  v.  School  Board  (1900)  161 

N.  Y.  598;  606 
People  v.  Schweinler  Press  (1915) 

214  N.  Y.  395;  581 
People    v.     Tax     Commissioners 

(1909)  196  N.  Y.  39;  537 
People    v.    Williams    (1907)    189 

N.  Y.  1315581 
Peoria  Branch  of  the  State  Bank 

of   Ohio   v.   Knoop    (1853)    16 

Howard  369;  468 
Peterhof,  The   (1866)   5  Wallace 

28;  323 
Peter    Zenger's    Case    (1735)    17 

Howard's  State  Trials  675;  358 
Pettibone  v.   Nichols  (1906)   203 

U.  S.  192;  491 
Philadelphia  v.   Scott    (1876)    80 

Pa.  81;  561 
Philadelphia  Ball  Club  v.  Lajoie 

(1902)  202  Pa.  210;  499 
Philadelphia  F.  Ins.  Co.  v.  New 

York  (1886)  119  U.  S.  no;  485 
Philadelphia  S.  S.  Co.  v.  Pennsyl- 
vania (1887)  122  U.  S.  326;  250, 

252 
Phillips  v.   United  States   (1912) 

201  Fed.  259;  386 
Pierce  v.  Creecy  (1908)  210  U.  S. 

387;  490 


Pierce  v.  Drew  (1883)  136  Mass- 

75;  552 
Pierce  v.  United  States  (1920)  252 

U.  S.  239;  369 

Pill,  In  re  (1864)  39  Ala.  459;  259 
Pipe  Line  Cases  (1914)  234  U.  S. 

548;  209,  410 
Piqua  Branch  of  State  Bank  of 

Ohio     v.     Knoop     (1853)      16 

Howard  369;  461 
Pitney  v.  Washington  (1916)  240 

U.  S.  387;  575 
Pittsburgh  etc.  Ry.  Co.  v.  Backus 

(1894)  154  U.  8.421 ;  538 
Plessy    v.    Ferguson    (1896)    163 

U.  S.  537;  498,  565,  606 

Plummer  v.  Coler  (1900)  178 
U.  S.  115;  540,  601 

Plymouth  Coal  Co.  v.  Pennsyl- 
vania (1914)  232  U.  S.  531;  564 

Pomdexter  v.  Greenhow  (1884) 
ii4U.  S.  270;  95,  125 

Pollard's  Lessee  v.  Hagan  (1845) 
3  Howard  212;  310,  312 

Pollock  v.  Farmer's  L.  &  T.  Co. 

(1895)  158  U.  S.  601;  119,  186, 
198,  602 

Portland  v.  Public  Serv.  Comm. 

(1918,  Ore.)  173  Pac.  i  178;  467 
Postal    Telegraph    Cable    Co.    v. 

Adams  (1895)    *55  U.  S.  688; 

249,  252 
Postal    Telegraph    Cable   Co.    v. 

Richmond    (1919)    249    U.    S. 

252;  253 
Postal    Telegraph    Cable   Co.    v. 

Tremont  (1921)  255  U.  S.  114; 

54i 
Powell  v.  New  Jersey  (1908)  211 

U.  S.  78;  123 
Powell  v.  Pennyslvania  (1888)  127 

U.  S.  678;  605 
Presser  v.  Illinois  (1886)  116  U.  S. 

252;  260,376 
Price  v.  Illinois  (1915)  238  U.  S. 

446;  605 
Prigg  v.  Pennsylvania  (1842)   16 

Peters  539;  148,  492 
Prize  Cases,  The  (1862)  2  Black 

635;  62,  129,  255 
Producers  Transp.  Co.  v.  Railroad 

Comm.  of  California  (1920)  251 

U.  S.  228;  473,  569 
Prohibition  Liquor  Laws,   In  re 

(1894)  24  Canada  Sup.  Ct.  170; 

32 


TABLE  OF  CASES 


66 1 


Protector,  The  (1871)  12  Wallace 

700;  62,  129,  256 
Providence  Bank  v.  Billings  (1830) 

4  Peters  514;  458 
Public  Clearing  House  v.  Coyne 

(1904)  194  U.  S.  497;  341,  415 
Puget    Sound    Traction    Co.    v. 

Reynolds  (1917)  244  U.  S.  574; 

463 

Pullman  Palace  Car  Co.  v.  Penn- 
sylvania (1891)   141  U.  S.   18; 

539 
Pumpelly  v.  Green  Bay  Co.  (1871) 

13  Wallace  166;  420,  554 
Pure  Oils  Co.  v.  Minnesota  (1918) 

248  U.  S.  158;  254 

Q 

Quarles,  In  re  (1895)   158  U.  S. 

532;  335 
Queen  v.  Boyes  (1861)  I  B.  &  S. 

311;  390 


Radich    v.    Hutchins    (1877)    95 

U.  S.  210;  381 
Rail  &  River  Coal  Co.  v.  Yaple 

(1915)  236  U.  8.338;  584 
Rahrer,  In  re  (1891)    140  U.  vS. 

545;  124,  234 
Rapier,  In  re  (1892)  143  U.  S.  no: 

340 
Rassmussen     ».     United     States 

(1905)  197  U.  S.  516;  304 
Rast  v.  Van  Deman  &  Lewis  Co. 

(1916)  240  U.  S.  342;  575 
Reagan  v.  Farmers'  L.  &  T.  Co. 

(1894)  154  U.  S.  362;  95,  144, 

570,  607 
Reagan  v.  United  States   (1913) 

202  Fed.  488;  387 
Reaves  v.  Ainsworth  (1911)   219 

U.  S.  296;  263 
Reed,  Ex  parte  (1879)  100  U.  S. 

13;  262 
Reetz  v.  Michigan  (1903)  188  U. 

S.  505;  416 
Regina  v.   Jones   (1703)    I    Salk. 

379;  574 
Reid  v.  Colorado  (1902)  187  U.  S. 

137;  231,  245,  248 
Reinman  v.   Little  Rock    (1915) 

237  U.  S.  171;  563 
Respublica    v.    Sweers    (1779)    i 

Dallas  41 ;  26 


Revels,  H.  L.  (1870)  Taft's  Senate 

Election  Cases  312;  1 65 
Rex  v.   Almon    (1770)    20   State 

Trials  805;  352 
Rex  v.  Ivens  (1835)  7  C.  &  P.  213; 

568 
Rex   v.    Miller    (1770)    20   State 

Trials  870;  351 
Rex  v.  Owen  (1752)  18  State  Trials 

1203;  351 
Reynolds  v.  United  States  (1878) 

98  U.  S.  145;  342,  343,  401 
Rhode    Island    v.    Massachusetts 

(1838)  12  Peters  657;  96 
Rice    v.    D'Arville,    reported    in 

Boston    Transcript,    Sept.    29, 

1894;  500 
Riley  v.  Massachusetts  (1914)  232 

U.  S.  671;  580 
Rippey  v.  Texas  (1904)  193  U.  S. 

504;  600 
Ritzville  Hardware  Co.   v.   Ben- 

nington  (1908)  50  Wash,   in; 

289 
Riverside  &  Dan  River  Cotton 

Mills   v.    Menefee    (1915)    2^7 

U.  S.  189;  516 
Robb  v.  Connelly  (1884)  in  U.  S. 

624;  489 
Robbins    v.    Taxing    District    of 

Shelby   Co.  (1887)    120  U.   S. 

489;  210,  249 
Robert  W.  Parsons,  The  (1903) 

191  U.  S.  17;  109 
Roberts  v.  Reilly  (1885)  116  U.  S. 

80;  489 
Robertson  v.  Baldwin  (1897)  165 

U.  S.  275;  358,  375,  501 
Robinson,    Ex    parte    (1873)     J9 

Wallace  505;  141 
Robinson's  Case  (1881)  131  Mass. 

376;  484 
Roher  v.    Roher    (1911)    150   la. 

511;  525,  526 
Roller  v.  Holly  (1900)  176  U.  S. 

398;  521 
Romaine,    Matter   of   Estate   of 

(1891)  127  N.  Y.  80;  545 
Rooney  v.  North  Dakota  (1905) 

196  U.  S.  319;  448 
Rosenbaum  v.   State   (1917)    131 

Ark.  251;  344 
Rosen wasser  Bros.,  In  re  (1918) 

254  Fed.  171;  395 
Ross,  In  re  (1891)  140  U.  S.  453; 

298    ' 


662 


TABLE  OF  CASES 


Ross  v.  Oregon  (1913)  227  U.  S. 

150;  450 
Royall,  Ex  parte  (1886)  117  U.  S- 

254;  107 
Royall  Nos.    I   and  2,  Ex  parte 

(1886)  117  U.  S.  241;  107 
Royster   Guano   Co.   v.    Virginia 

(1920)  253  U.  S.  412;  603 
Ruddy  v.  Rossi  (1918)  248  U.  S. 

104;  288 
Russell  v.  Mayor  (1845,  N.  Y.)  2 

Denio  461;  562 
Ryder  v.  Holt  (1888)   128  U.  S. 

525;  339 
Ryerson    v.     Brown     (1877)     35 

Mich.  333;  553 


Sah  Qual,  In  re  (1886)  31  Fed. 

327;  422,497 
St.  Anthony  Falls  W.  P.  Co.  v.  St. 

Paul     Water      Commissioners 

(1897)  I68U.  S.  349;  555 
St.  Louis  &  S.  F.  R.  R.  Co.  v. 

Matthews  (1897)  165  U.  S.  i; 

St.   Louis  &  S.  W.   Ry.   Co.  v. 

Arkansas  (1910)  217  U.  S.  136; 

247 

St.  Louis  &  S.  W.  R.  Co.  v.  Arkan- 
sas (1914)  235  U.  S.  350;  541 
St.  Louis  I.  M.  &  S.  R.  R.  Co.  v. 

Taylor  (1908)  210  U.  S.  281 ;  226 
St.  Louis  Poster  Advertising  Co. 

v.  St.  Louis  (1919)  249  U.  S. 

269;  567 
St.  Paul  Gas  Light  Co.  v.  St.  Paul 

(1901)  181  U.  S.  142;  456 
Salina  v.  Blakesley  (1905)  72  Kan. 

230;  375 

Salomon  v.  United  States  (1873) 

19  Wallace  17;  in 
Salt  Lake  City  v.  Utah  Light  Co. 

(1918,  Utah)  173  Pac.  556;  467 
Sampayreac     v.     United     States 

(1833)  7  Peters  222;  140 
Sands    v.    Manistee    (1887)     123 

U.  S.  288;  235 
Santa  Clara  County  v.  Southern 

Pac.  Ry.  Co.  (1886)  118  U.  S. 

394;  588 
Santiago  v.  Nogueras  (1909)  214 

U.  S.  260;  62 
Savage  v.  Jones  (1912)  225  U.  S. 

501;  245 


Savings  &  L.  Soc.  v.  Multnomah 

County  (1898)   169  U.  S.  421; 

542 
Schaefer  v.  United  States  (1920) 

251  U.  S.  466;  365,  369 
Schenck  v.  United  States  (1919) 

249  U.  S.  47;  358,  365,  367,  369 
Schick  v.  United  States  (1904)  195 

U.S.  65;  385,386 
Schillinger  v.  United  States  (1894) 

155  U.S.  163;  in 
Scholey  v.  Rew  (1874)  23  Wallace 

331;  186,  188 
Schwab   v.    Berggren  (1892)  143 

U.  S.  442;  409 
Scott  v.  McNeal  (1894)  154  U.  S. 

34;  504 
Scran  ton  v.  Wheeler  (1900)    179 

U.  S.  141;  420,  555 
Seaboard  Air  Line  Ry.  v.  Seegers 

(1907)  207  U.  S.  73;  610 
Searl  v.  School  Dist.  (1890)   133 
^  U.  S.  553;  549 
Second  Employers'  Liability  Cases 

(1912)  223  U.  S.   i;  228,  242, 

245,  248,  417 
Security  Mut.  Ins.  Co.  v,  Prewitt 

(1906)  202  U.  S.  246;  485 
Selective  Draft  Law  Cases  (1918) 

245  U.  S.  366;  258,  259,  260, 

318,376,  500 
Sere  v.  Pitot  (1810)  6  Cranch  332; 

283,  284 
Settlemeer  v.  Sullivan  (1878)  97 

U.  S.  44;  523 
Shaffer  v.  Carter  (1920)  252  U.  S. 

375  544,  602 
Shallenberger  v.  First  St.  Bk.  of 

Holstein  (1911)  219  U.  S.  114; 

577,  608 
Shanks  v.  Dupont  (1830)  3  Peters 

242;  324 
Shepherd  v.  People  (1862)  25  N. 

Y.  406;  447 
Shively  v.  Bowlby  (1894)  I52  U.  S. 

i ;  282,  285 
Shoemaker  v.  United  States  (1893) 

147  U.  S.  282;  63,  139,  420,  552 
Shreveport  Case  (1914)  234  U.  S. 

342;  236,  237 
Simmon's     Case     (1862)     Taft's 

Senate  Election  Cases  237;  170 
Simmons  v.  Miller  (1864)  40  Miss. 

19;  259 
Simmons  v.  United  States  (1891) 

142  U.  S.  148;  397 


TABLE  OF  CASES 


663 


Simon,  Ex  parte  (1905)  208  U.  S. 

144;  107 
Simon  v.  Craft  (1901)  182  U.  S. 

427;  513 
Simpson  v.  Jersey  City  Co.  (1900) 

165  N.Y.  193;  547 
Simpson  v.  United  States  (1916) 

229  Fed.  940,  241  U.  S.  668;  397 
Sinking    Fund    Cases    (1878)    99 

U.  S.  700;  413 
Sinnickson  v.  Johnson  (1839)   17 

N.  J.  Law  129;  550 
Sioux  Remedy  Co.  v.  Cope  (1914) 

235  U.  S.  197;  517 
Siren,  The  v.  United  States  (1868) 

7  Wallace  152;  95 
Slaughter  House  Cases  (1872)  16 

Wallace  36;  318,  329,  330,  331, 

334,  335.  336,  427,  460,  498,  586, 

587,  612 
Sligh  v.  Kirkwood  (1915)  237  U.  S. 

52;  246 
Smelting  Co.  v.  Kemp  (1881)  104 

U.  S.  636;  416 
Smith's  Case  (1808)  Taft's  Senate 

Election  Cases  79;  170 
Smith  v.  Grady   (1887)   68  Wis. 

215;  525 

Smolik  v.  Philadelphia  &  R.  Coal 
&  Iron  Co.  (1915)  222  Fed.  148; 

517 

Smyth  v.  Ames  (1898)  169  U.  S. 

466;  95,  239,  571 
South  Carolina  t>.  Georgia  (1876) 

93  U.  S.  4;  440 
South  Carolina  v.  United  States 

(1905)  199  U.  S.  437;  198 
South  Dakota  v.  North  Carolina 

(1904)  192  TJ.  S.  286;  97 
Southern  Pacific  Co.  v.  Board  of 

R.  R.  Comrs.   (1896)   78  Fed. 

236;  574 
Southern  Pacific  Co.  v.  Campbell 

(1913)  230  U.  S.  537;  463 
Southern   Pac.   Co.   v.  Kentucky 

(1911)  222  U.  S.  63;  537 
Southern  Ry.  Co.  v.  Greene  (1910) 

216  U.  S.  400;  541,  588,  589,  593 
Southern     Ry.     Co.     v.     United 

States  (1911)  222  U.  S.  20;  226, 

241 
Spies  v.  Illinois  (1887)  123  U.  S. 

131;  332 
Spinney,  Ex  parte  (1875)  10  Nev. 

323;  484 
Spratt  v.  Spratt  (1830)  4  Peters 

393;  323 


Spreckles     Sugar     Ref.     Co.     v. 

McClain  (1904)  192  U.  S.  397; 

187 
Springer  v.  United  States  (1880) 

102  U.  S.  586;  186,  415 
Spring    Valley    W.    W.    Co.    v. 

Shottler  (1883)  no  U.  S.  347; 

474 
Standard  Oil  Co.  v.  Graves  (1919) 

249  U.  8.389;  254 
Standard  Oil  Co.  v.  United  States 

(1911)  221  U.  S.  i;  218 
Stanley,  Ex  parte  (1868)  4  Nev. 

113;  386 
Stanley  v.  Schwalbey  (1896)  162 

U.  S.  255;  94 
State  ex  rel.  v.  Associated  Press 

(1900)  159  Mo.  410;  570 
State  v.  Boyd  (1893)  36  Neb.  181; 

158 
State  ex  rel.  Wood  v.  Consumers' 

Gas  Co.   (1901)   157  Ind.  345; 

568 
State   v.    Cunningham  (1892)  81 

Wis.  440;  132 
State  v.  Ferris  (1895)  53  Ohio  314; 

191 
State  v.  Goodwin  (1898)  123  N.  C. 

697;  123 
State  v.  Gorman  (1889)  4°  Minn. 

232;  191 
State  v.  Huston  (1910)  27  Okl. 

606;  127 
State   v.    Keet    (1916)    269   Mo. 

206;  375 
State  v.  Main  (1897)  69  Conn.  123; 

State  v.  March  (1854)  I  Jones  (N. 

Car.)  526;  390 
State  v.  Nebraska  Tel.  Co.  (1885)       f 

17  Neb.  126;  570 
State  v.  Nelson  (1890)  i  N.  D.  88;      / 

535 
State  v.  Osawkee  Township  (1875) 

14  Kan.  418;  535 
State  v.  Switzler  (1898)  143  Mo. 

287;  191 
State  v.  Thomas  (1887)  98  N.  C. 

599; 
State  v.  White  (1886)  64  N.  H.  48; 

344 

State  Assessors  v.  Comptoir  Na- 
tional D'Escompte    (1903)   191 

U.S.  388;  542 
State  Railroad  Tax  Cases  (1875) 

92  U.  S.  575;  538,  600 


664 


TABLE  OF  CASES 


State  Tax  on  Foreign  Held  Bonds 
(1872)  15  Wallace  300;  541, 
542,  543 

State  Tax  on  Railway  Gross  Re- 
ceipts (1872)  15  Wallace  284; 
250,  252 

States  v.  Lee  (1882)  106  U.  S.  196; 
125 

Steamship  Co.  v.  Portwardens 
(1867)  6  Wallace  31 ;  443 

Stephens  v.  Cherokee  Nation 
(1899)  174  U.  S.  445;  140,  316 

Stettleri;.  O'Hara  (1917)  243  U.  S. 
629;  582,  611 

Stewart  v.  Kahn  (1870)  11  Wal- 
lace 493;  276 

Stewarts.  Gieat  Northern  R.  R. 
Co.  (1896)  65  Minn.  515;  552 

Stockdale  v.  Hansard  (1839)  9 
Ad.  &  Ell.  i;  171 

Stocker    v.    Brocklebank    (1851) 

3  McH.  &  G.  (Eng.)  250;  499 
Stockton    v.    McCracken    (1871) 

109  Mass.  84;  526 
Stone  v.  Farmers'  Loan  and  Trust 

Co.(i886)  II6U.S.  3075463,  570 
Stone  v.   Mississippi   (1879)    IO1 

U.  S.  814;  458,  465,  566 
Storall,  Admin,  v.  United  States 

(1891)  26  Ct.  Cl.  226;  in 
Stoutenburgh  v.  Hennick   (1889) 

129  U.  S.  141;  151,  306 
Strathearn  S.   S.   Co.    v.    Dillon 

(1920)  252  U.  S.  348;  214 
Strauder  v.  West  Virginia  (1879) 

ipo  U.  S.  303;  426,  587 
Strickley  v.  Highland  Boy  Mfg. 

Co.  (1906)  200  U.  S.  527;  554 
Sturges  v.  Beauchamp  (1914)  231 

U.  S.  320;  580,  606,  611 
Sturges  v.   Crowninshield   (1819) 

4  Wheaton  122;  337,  338,  453, 

454 
Sturgis  v.  Carter  (1885)  114  U.  S. 

511;  541 
Sturgis  v.  Fay  (1861)  16  Ind.  429; 

525,  526 
Sugarman  v.  United  States  (1919) 

249  U.S.  182;  365 
Sully  v.  American  Nat.  Bk.  (1900) 

178  U.  S.  289;  589 
Supervisors  of  Wayne  County  v. 

Kennicott  (1880)  103  U.  S.  554; 

404 
Surroco  v.  Geary  (1853)  3  Calif. 

69;  562 


Swart  v.  Rechel  (1895)  159  U.  S. 

380;  549,  552 
Swift,  Matter  of  (1893)  137  N.  Y. 

37;  545 
Swift  v.  Tyson  (1842)  16  Peters  i; 

114.  U5 
Swift   &    Co.    v.    United    States 

(1905)  196  U.  S.  375;  218 
Synder   v.    Bettman    (1903)    190 

U.  S.  249;  199 

T 

Tanner  v.  Little  (1916)  240  U.  S. 

369;  575 
Tappan  v.   Merchants  Nat.   Bk. 

(1873)    19    Wallace    490;  542, 

546 
Teel  v.  Yost    (1891)    128  N.  Y. 

387;  525 
Tennessee   v.    Davis    (1879)    100 

U.  S.  257;  103 
Texas  v.  White  (1868)  7  Wallace 

700;  30,  46,  62,  309 
Thames  &  Mersey  Mar.  Ins.  Co. 

v.  United  States  (1915)  237  U. 

S.  19;  196 
Thomas  Cusack  Co.  v.   Chicago 

(1917)  242  U.  S.  526;  567 
Thomas  Jefferson,  The  (1825)  10 

Wheaton  428;  109 
Thompson  v.  Missouri  (1898)  171 

U.  S.  380;  448 
Thompson   v.    Thompson    (1913) 

226  U.  S.  551;  481 
Thompson  v.  United  States  (1894) 

155  U.  S.  271;  397 
Thompson  v.  Utah  (1895)  170!!.  S. 

3435  385,  386,  449 
Thompson  v.  Whitman  (1873)  18 

Wallace  457;  476,  477 
Toyota  v.  Hawaii  (1913)  226  U. 

S.  184;  600 
Trade-Mark    Cases    (1879)     100 

U.  S.  82;  339 
Travis  v.  Yale  &  Towne  M'f'g. 

Co.  (1920)  252.  U.  S.  60;  544, 

602,  603 
Tri-State  Coal  &  Coke  Co.,  In  re 

(1918)  253  Fed.  605;  395 
Trono    v.    United    States    (1905) 

199  U.  S.  521;  399 
Troy   Un.    R.   R.   Co.   v.   Mealy 

(1920)  254  U.  S.  47;  462 
Truax  v.  Raich  (1915)  239  U.  S. 

33J  587 

Trumball's    Case    (1856)    Taft's 
Senate  Election  Cases  148;  165 


TABLE  OP  CASES 


665 


Tua  v.  Carriere  (1886)  117  U.  S. 

201;  124 
Turney    v.    Marshall    (1856)     i 

Bartlett's  Contested  Elections 

167;  160 
Turpini>.  Burgess  (1886)  117  U.  S. 

504;  196 
Twining  v.  New  Jersey  (1908)  211 

U.  S.  78;  530 
Twining  v.   Pennsylvania   (1887) 

127  U.  S.  678;  123,  511,  512, 

529 


U 


Underwood    Typewriter    Co.    v. 
Chamberlain  (1920)  254  U.  S. 

113;  539 
Union  Bridge  Co.  v.  United  States 

(1907)  204  U.  S.  364;  153 
Union  Dry  Goods  Co.  v.  Georgia 

Pub.    Ser.    Co/p.    (1919)    248 

U.S.  372;  473 
Union  Lime  Co.  v. Chicago  &  N.  W. 

Ry.  Co.  (1914)  233  U.  S.  21 1 ; 

552 
Union    Refrigerator    Tr.    Co.    v. 

Kentucky  (1905)  199  U.  S.  194; 

536,  537 
United  Drug  Co.  v.  Rectamus  Co. 

(1918)  248  U.  S.  90;  339 
United  States,  Ex  parte(  1916),  242 

U.  S.  27;  69,  142 
United  States  v.  Alice  Weil  (1894) 

29  Ct.  Cl.  526;  84 
United  States  v.  Arjona  (1887)  120 

U.  S.  479;  380 
United   States   v.    Avery    (1867) 

Deady  204;  65 
United  States  v.  Ball  (1896)  163 

U.S.  662;  397,398 
United    States   v.   Ballin  (1892), 

144  U.  S.  i;  166,  167 
United  States  v.   Balsara  (1910) 

1 80  Fed.  694;  324 
United  States  v.  Bevans  (1818)  3 

Wheaton  336;  109 
United  States  v.  Black  (1888)  128 

U.  S.  40;  125 
United  States  v.   Britton   (1882) 

108  U.  S.  199;  379 
United    States   v.    Burch    (1915) 

226  Fed.  974;  208 
United  States  v.  Burleson  (1921) 

41  Sup.  Ct.  Rep.  352;  341 
United  States  v.  Caldwell  (1795) 

Fed.  Cas.  14,  708;  400 


United  States  v.  Carll  (1881)  105 

U.  S.  611;  379 
United  States  v.  Casey  (1918)  247 

Fed.  362;  270 
United  States  v.  Chandler- Dunbar 

W.  P.  Co.  (1913)  229  U.  S.  53; 

420,  555 
United  States  v.  Choctaw  Nation 

(1903)  38  Ct.  of  Claims  558; 

422,  497 
United  States  v.  Cisna  (1835,  Cir. 

Ct.)  i  McLean  254;  215 
United  States  v.  Clarke  (1834)  8 

Peters  436;  94 
United  States  v.  Cohen  Grocery 

Co.  (1921)  255  U.  S.  81;  268 
United  States  v.  Coolidge  (1816) 

i  Wheaton  41 5;  379 
United  States  v.  Cooper  (1800)  4 

Dallas  341 ;  400 
United     States     v.     Cruikshank 

(1875)  92  U.  S.  542;  374,  375, 

426 
United  States  v.  Dawson  (1853) 

15  Howard  467;  383 
United  States  v.  Delaware  &  H. 

Co.  (1909)  213  U.  S.  366;  410 
United  States  v.  Eaton  (1892)  144 

U.  S.  677;  154,  379 
United  States  v.  E.  C.  Knight  Co. 

(1895)  156  U.  S.  i;  212,  218 
United    States    v.     Edmondston 

(1901)  181  U.  S.  500;  in 
United  States  v.  Elliott  (1894)  62 

Fed.  801;  219 
United  States  v.  Evans  (1909)  213 

U.  S.  297;  134 
United   States  v.   Ferger   (1919) 

250  U.  S.  199;  231 
United  States  v.  Ferreira  (1851) 

13  Howard  40;  63,  98,  120,  134, 

137,  139 
United  States  v.  Fitch  (1895)  70 

Fed.  578;  in 
United  States  v.  Fitch  (1896)  163 

U.  8.631;  540 

United  States  v.  Forty-three  Gal- 
lons of  Whiskey  (1876)  93  U.  S. 

188;  75,  216 
United   States   v.    420   Sacks   of 

Flour  (1910)  180  Fed.  518;  231 
United   States  v.   Fox    (1880)    3 

Mont.  512;  386 
United  States  v.  Fries  (i799)  Fed. 

Cas.  5,  125;  383 


666 


TABLE  OF  CASES 


United  States  v.  Gettysburg  El. 

Ry.  Co.  (1896)  1 60  U.  S.  668; 

420,  550,  552 
United  States  v.  Glad  well  (1917) 

243  U.  S.  476;  379 
United  States  v.  Great  Falls  Mfg. 

Co.  (1884)  112  U.  S.  645;  in, 

55i 
United     States     v.     Greathouse 

(1863)  4  Sawyer  457;  381 
United  States  v.  Grimaud  (1910) 

220  U.  S.  506;  153 

United  States  v.  Guthrie  (1854)  17 

Howard  284;  65 
United   States   v.    Harris    (1882) 

1 06  U.  S.  629;  423,  426 
United  States  v.  Hill  (1919)  248 

U.  S.  420;  209 
United  States  v.  Hitchcock  (1903) 

190  U.  S.  316;  416 
United  States  v.  Holliday  (1865) 

3  Wallace  407;  215 

United  States  v.  Hoxie   (1814)    I 

Paine  265;  381 
United  States  v.  Huckabee  (1872) 

16  Wallace  414;  276,  279 
United  States  t>.  Hudson  (1812)  7 

Cranch  32 ;  379 
United  States  v.  Hvoslef  (1915) 

237  U.S.  i;  196 
United  States  v.  Jones  (1883)  109 

U.  S.  513;  419,   420,   421,   550, 

United  States  v.  Ju  Toy   (1905) 

198  U.  S.  253;  415 
United  States  v.  Kagama  (1886) 

ii8U.  S.  375;  3H.3I5 
United  States  v.  Klein  (1871)  13 

Wallace  128;  69 
United  States  v.  Lawrence  (1835) 

4  Cranch  Cir.  Ct.  514;  402 
United  States  v.  Lee  (1882)   106 

U.  S.  196;  94,  95 
United  States  ».  Lee  Yen  Tai 

(1902)  185  U.  S.  213;  73 
United  States  v.  Marigold  (1850) 

9  Howard  560;  380,  395 
United  States  v.  McCullagh  (1915) 

221  Fed.  288;  75 

United  States  v.  Mitchell  (1795) 

2  Dallas  348;  381 
United  States  v.  Morris  (1825)  10 

Wheaton  246;  69 
United  States  v.  Negro  John 

(1833)  4  Cranch  Cir.  Ct.  336; 

396 


United  States  v.  Nickerson  (1920) 

268  Fed.  864;  616 
United  States  v.  Northern  Pacific 

Railway  Co.  (1921)  256  U.  S. 

5i;  4H 
United   States   v.    Pacific   R.   R. 

(1887)  120  U.  S.  227;  269 
United  States  v.  Palmer  (1818)  3 

Wheaton  610;  129 
United    States    v.    Pennsylvania 

Cent.  Coal  Co.  (1918)  256  Fed. 

703;  268 
United  States  v.  Perez  (1824)  9 

Wheaton  579;  397 
United  States  v.   Perkins   (1886) 

ii6U.  S.  483;  64 
United  States  v.  Perkins  (1896)  163 

U.  S.  625;  199,  540,  601 
United  States  v.  Peters  (1809)  5 

Cranch  115;  95,  122 
United  States  v.   Popper   (1899) 

98  Fed.  423 ;  230 
United  States  v.  Pridgeon  (1894) 

153  U.  S.  48;  263,  287 
United  States  v.  Pryor  (1814)  3 

Washington  234;  381 
United  States  v.  Railroad  Com- 
pany (1872)  i7Wallace  322;  198 
United  States  v.  Rauscher  (1886) 

119  U.  S.  407;  80,  488 
United  States  v.  Ravara  (1793)  2 

Dallas  297;  378 
United  States  v.  Realty  Co.  (1896) 

163  U.  S.  427;  182,  534 
United  States  v.  Reese  (1875)  92 

U.  S.  214;  428,  614 
United  States  v.  Reynolds  (1914) 

235  U.S.  133;  499 
United  States  v.   Rice   (1819)   4 

Wheaton  246;  289 
United  States  v.  Russell  (1871)  13 

Wallace  623;  269 
United  States  v.  Sandoval  (1913) 

231  U.  S.  28;  312 
United   States  v.   Sanges    (1892) 

144  U.  S.  310;  398 
United  States  v.  Shauver  (1914) 

214  Fed.  154;  75 
United  States  v.  Singer  (1872)  15 

Wallace  in;  192 
United  States  v.  Smith  (1806)  Fed. 

Cas.  1 6,  342;  400 
United  States  v.  Smith  (1820)  5 

Wheaton  153;  379 
United  States  v.  Tarble  (1871)  13 

Wallace  397;  106,  107 


TABLE  OF  CASES 


667 


United  States  v.  Texas  (1892)  143 

U.S.  621;  96 
United  States  v.   Trans- Missouri 

Freight  Assoc.  (1897)  166  U.  S. 

290;  218 
United  States  v.  Vigol   (1795)   2 

Dallas  346;  381 
United  States  v.  Waddell  (1884) 

112  U.  S.  76;  335 
United  States  v.  Warrall  (1798)  2 

Dallas  384;  378,  379 
United  States  v.  Wilson  (1891)  46 

Fed.  748;  142 
United  States  v.  Wiltberger  (1820) 

5  Wheaton  76;  381 
United  States  v.  Wong  Kim  Ark 

(1898)  169  U.  S.  649;  316,  325, 

326 
United    States    Express    Co.    v. 

Minnesota    (1912)    223    U.    S. 

335;  239,  251 
United  States  Glue  Co.  v.  Town 

of  Oak  Creek  (1918)  247  U.  S. 

321;  252 
Urquhart   v.    Brown    (1907)    205 

U.  S. 179;  107 
Utah  Power  etc.   Co.  v.  United 

States   (1917)   243  U.   S.  389; 

550 


Van  Brocklin  v.  Tennessee  (1885) 
1 17  U.S.  1515306,539 

Vanhorne's  Lessee  v.  Dorrance 
(1795)  2  Dallas  304;  120 

Veazie  Bk.  v.  Fenno  (1869)  8  Wal- 
lace 533;  183,  1 86 

Veeder  v.  United  States  (1918) 
252  Fed.  414;  395 

Vicksburg  v.  Vicksburg  Water- 
works Co.  (1907)  206  U.  S. 
496;  461,  463,  464 

Virginia,  Ex  parte  (1879)  loo 
U.  S.  339;  426,  503,  591,  592 

Virginia  v.  Rives  (1879)  100  U.  S. 
313;  426 

Virginia  v.  Tennessee  (1892)  148 
U.  S.  503;  440 

Virginia  v.  West  Virginia  (1870) 
II  Wallace  39;  456 

Virginia  v.  West  Virginia,  220 
U.  S.  i,  222  U.  S.  17,  231  U.  S. 
89,  234  U.  S.  117,  238  U.  S.  202, 
241  U.  S.  53 1 ,  246  U.  S.  566;  97, 


W 

Wabash  St.  L.  &  P.  R.  R.  v.  Il- 
linois (1886)  118  U.  S.  557;  235, 

247,  570 
Wadley  S.  R.  Co.  v.  Georgia  (1915) 

235  U.  S.  651;  574 
Wagner  v.  Baltimore  (1915)  239 

U.  S.  207;  598 
Wagner  v.  Covington  (1919)  215 

U.  S.  95;  214 
Wallace    v.    Adams    (1907)    204 

U.  S.  415;  140 
Wallace  v.  Hines  (1920)  253  U.  S. 

66;  539,  541 
Walla  Walla  v.  Walla  Walla  Water 

Co.  (1898)  172  U.  S.  i;  459 
Walls    v.  Midland    Carbon    Co. 

(1920)  254  U.  S.  300;  577 
Walston*;.  Nevin  (1888)  128  U.  S. 

578;  595 
Walters,  Ex  parte  (1913)  106  Miss. 

439;  489 
Ward    v.    Maryland    (1870)     12 

Wallace  418;  483 
Ward  Lumber  Co.  v.  Henerson- 

White  M'f'g.    Co.    (1907)    107 

Va.  626;  527 
Ware  v.  Hylton  (1796)  3  Dallas 

199;  25,  74 
Ware  v.  Mobile  (1908)  209  U.  S. 

405;  211 
Waring  v.  Clark  (1847)  5  Howard 

441;  109 
Warren  v.  Kelley  (1888)  80  Me. 

512;  123 
Washington  University  v.  Rouse 

(1869)  8  Wallace  439;  468 
Wayman  v.  Southard   (1825)    10 

Wheaton  i;  150 
Weaver  v.  Fegely  (1857)  29  Pa. 

St.  27;  341 
Webb,  In  re  (1912)  225  U.  S.  663; 

312 
Webber   v.    Virginia    (1880)    103 

U.  S.  344;  249,  338 
Weber  v.  Freed  (1915)  239  U.  S. 

325;  214 
Webster  v.  Reed  (1850)  n  Howard 

4;  521 

Weeks  v.  Milwaukee  (1860)    10 

Wis.  1 86;  536 
Weeks  v.  United  States  (1914)  232 

U.S.  383;  391,393,395 
Weeks  v.  United  States  (1918)  245 

U.  S.  618;  231 


668 


TABLE  OF  CASES 


Weemsr.  United  States  (1910)  217 

U.  S.  349;  402 
Welch  v.  Swasey  (1909)  214  U.  S. 

91;  605 
Welch  v.  Sykes  (1846)  8  111.  197; 

521 
Wells,  Ex  parte  (1855)  18  Howard 

307;  69 
Wemyss  v.  Hopkins  (1875)  L.  R. 

loQ.  B.  378;  396 
West  v.   Kansas   Nat.   Gas   Co. 

(1911)  221  U.  S.  229;  246 
West    v.    Louisiana    (1904)    194 

U.  S.  258;  530 
Western  Union  Tel.  Co.  v.  Kansas 

(1910)  216  U.  S.  i;  252,  541 
Western  Union  Tel.  Co.  v.  Tag- 

gart  (1896)  163  U.  S.  i;  539 
Western  Union  Tel.  Co.  v.  Texas 

(1881)  105  U.  S.  460;  249 
Western  Turf  Assoc.  v.  Greenberg 

(1907)  204  U.  8.359;  515 
Weston   v.    Charleston    (1829)    2 

Peters  449 ;  540 
West  River   Bridge   Co.   v.   Dix 

(1848)  6  Howard  507;  461,  550 
West  Side  R.  R.  Co.  v.  Pittsburgh 

Cons.  Co.  (1911)  219  U.  S.  92; 

456 
West  Va.  Trans.  Co.  v.  Volcanic 

C.  &.  O.  Co.  (1872)  5  W.  Va. 

382;  552 
Wharton  v.  Wise  (1894)  X53  U.  S. 

155;  10,  440 
Wheeler  v.   Jackson    (1890)    137 

U.  S.  245;  455 
Wheeler  v.  New  York  (1914)  233 

U.  S.  434;  543 
Wheeler  v.  Sohmer  (1914)  233  U. 

S.  434;  546 
Wheeler  v.  United  States  (1913) 

226  U.  S.  478;  392 
Whitney  v.  Robertson  (1888)  124 

U.  S.  190;  73 
Whiton  v.  Albany  Ins.  Co.  (1871) 

109  Mass.  24;  281 
Wikerson  v.  Utah  (1878)  99  U.  S. 

130;  402 
Willcox  v.  Consolidated  Gas  Co. 

(1909)  212  U.  S.  19;  573 
Willamette    Iron    Bridge  Co.  v. 

Hatch  (1888)  125  U.S.  i;  312 
William's  Case  (1799)  Fed.  Cas.  17 

708;  378 
Williams  v.  Board  of  Education 

(1908)  79  Kan.  202;  606 


Williams  v.  Bruffy  (1877)  96  U.  S. 

176;  440 
Williams  v.  Eggleston  (1898)  170 

U.  S.  304;  599 
Williams  v.  Mississippi  (1898)  170 

U.  S.  214;  613 
Williams  v.  Suffolk  Ins.  Co.  (1839) 

13  Peters  41 5;  128 
Williamsons.  United  States  (1908) 

207  U.  8.425;  175 
Wilmington  Star  Mining   Co.  v. 

Fulton   (1907)   205   U.   S.   60; 

606 
Wilson,  Ex  parte  (1885)  114  U.  S. 

417;  385 
Wilson  v.    Blackbird   Creek   Co. 

(1829)  2  Peters  245;  243 
Wilson  v.  New  (1917)  243  U.  S. 

332;  222,  223,  410 
Wilson   t>.    Seligman    (1892)    144 

U.  S.  41;  516 
Wilson  v.  Shaw  (1907)  204  U.  S. 

24;  224,  268,  276,  340 
Wilson  v.  United  States  (191 1)  221 

U.S.  361;  392 
Wilson  v.  United  States  (1914)  232 

U.  S.  563;  208 
Windsor  v.   McVeigh    (1876)    93 

U.  S.  274;  528 
Wisconsin  v.   Philadelphia  &  R. 

Coal  Co.  (1916)  241  U.  S.  329; 

486 
Wisconsin   C.   Ry.   v.   Price   Co. 

(1890)  133  U.  S.  496;  539 
Withers    v.    Buckley    (1857)    20 

Howard  84;  310 
Wong    Wing    v.    United    States 

(1896)  163  U.  S.  228;  154 
Wood,  In  re  (1891)  140  U.  S.  278; 

587 
Wood  v.  Vandalia  R.  R.  (1913) 

231  U.  S.  i;  239 
Woodf all's  Case  (1770)  20  State 

Trials  895;  352,353 
Woodruff  v.  Parham  (1868)  8  Wal- 
lace 123;  195,  249,443 
Worcester   v.    Georgia    (1832)    6 

Peters  515,  560;  314 
Worcester  v.  Street  Ry.  Co.  (1905) 

196  U.  S.  539;  471 


Yarborough,  Ex  parte  (1884)  no 
U.  S.  651;  157,  334 

Yell's  Case  (1847)  Bartlett's  Con- 
tested Elections  92 ;  179 


TABLE  OF  CASES 


669 


Yick  Wo  t>.  Hopkins  (1886)  118 
U.  S.  357;  5H,  587,  591,  593 

Young,  Ex  parte  (1908)  209  U.S. 
123;  95.  125 

In  re  Young  (1912)  198  Fed.  715; 

324 


Zakonaite  v.  Wolf  (1912)  226  U.  S. 
272;  385 


INDEX 


Adamson   Law.     (See  Interstate 

and  Foreign  Commerce) 
Administrative    action    and    due 

process,  415,  416 

Admiralty  and  Maritime  jurisdic- 
tion, 107-109 

after  the  Declaration  of  In- 
dependence, 107 
conferred    exclusively    upon 

the  federal  courts,  108 
extent  of  admiralty  jurisdic- 
tion, 109 

state  legislation  for  the  en- 
forcement of  maritime  con- 
tracts, 1 08,  109 
under  the  Articles  of   Con- 
federation, 107 
Admission  of  new  States.    (See  the 

States) 

Advisory  opinions,  134,  135 
Alien  and  Sedition  Law  of  1798. 
(See  Freedom  of  Speech  and  of 
the  Press) 
Amending  the  Constitution, 

exercise    of    the    amending 

power,  48-50 
is  it  too  difficult?,  36 
limitations  upon  the  amend- 
ing power,  44-49 
methods  of  changing  consti- 
tutions, 34 

President's  veto  power  does 
not  extend  to  amendments, 
38,82 
proposal  of  amendments,  36- 

40 

proposed  changes  as  to,  36 
provisions  in   the   Constitu- 
tion, 35 

ratification   of   amendments, 
40-44 


Articles  of  Confederation, 

adoption  of,  9 

determination  of  legality  of 
captures  and  division  of 
prizes  under,  107 

disputes  between  States 
under,  96 

federal  judiciary  under,  90 

forerunner  of  Tenth  Amend- 
ment in,  144 

Franklin's  plan  of  1754,  5 

Franklin's  plan  of  1775,  8 

general  provisions  of,  9 

interstate  commerce  not  regu- 
lated by,  9 

lack  of  taxing  power  under, 
1 80 

military  powers  under,  258 

Perm's  plan  of  1697,  5 

postal  service  provided  for 
under,  339 

provisions  for  admission  of 
new  States,  307 

submitted  to  the  States,  9 

territory  acquired  by  the 
United  States  under,  272- 
274,  282,  283 

treaty-making  power  under, 
70,  73 

uniform  weights  and  measures 
provided  for  in,  341 

weakness  of,  26 

Assembly.  (See  Right  of  Assembly) 
Australia, 

comparison  of  its  constitution 
with  that  of  the  United 
States,  31-33 

election  and  qualifications  of 
members  of  the  lower  house, 
I56n. 

election  and  qualifications  of 
members  of  the  upper 
house,  161  n. 

provision  in  Australian 
constitution  similar  to  com- 
merce clause,  206  n. 


671 


672 


INDEX 


B 


Bankruptcy, 

constitutional  provision  as  to, 

337 
effect  upon  state  insolvency 

legislation,  338 
statutes,  337 
uniformity  required   by  the 

Constitution,  337 
Bills  of  Attainder, 

constitutional  provision  af- 
fecting the  federal  govern- 
ment, 382 

constitutional    provision    af- 
fecting the  states,  446 
Bills  of  Credit, 

emission  of,  by  States,  441, 

442 
emission  of,  by  the  United 

States,  200-204 
"Blue  Sky"  Laws,  575 
Boston  Tea  Party,  7 


Cabinet,  the.    (See  The  President) 
Canada, 

comparison  of  its  constitution 
with  that  of  the  United 
States,  31-33 

election  and  qualifications  cf 
members  of  thelowerhouse, 
156  n. 

election  and  qualifications  of 
members  of  the  upper 
house,  161  n. 

provision  in   Canadian   con- 
stitution  similar   to    com- 
merce clause,  206  n. 
veto  power,  31 
Census, 

provision  for,  158 
Child  Labor  Legislation, 

under  the  commerce  clause, 

231-233 

under  the  taxing  power,  185 
Circuit  Courts  of  Appeals, 

appeals    to    Supreme    Court 

from  decisions  of,  99 
constitution  of,  90-92 
jurisdiction  of,  no,  in 
Citizenship  and  Naturalization, 
citizenship  by  birth,  324,  325, 

424 
corporations  as  citizens,  102, 

484 


dual    citizenship    recognized 

by  the  Constitution,  318, 

319 

expatriation,  328 
Indians,  316,  325,  326 
Nationals  who  are  not  citizens, 

327-328 
naturalization,  322-324 

alien  enemies,  324 

before  the  adoption  of  the 
Constitution,  323,  324 

by  marriage,  323 

Constitution      vests      sole 
power  in  Congress,  324 

general  provisions  for,  324 

minors,  324 

nationals,  324  n. 

persons  must  be  white  or  of 
African  descent,  324 

widows  and  orphans,  324 
privileges  and  immunities  of 

United  States  Citizenship, 

329-336,  424 

guaranties    of    first    eight 
amendments  are  not,  332, 

333 

not  the  same  as  privileges 
and  immunities  of  state 
citizenship,  329~332 
protected     against     state 

action,  336 

protected    by    the    Four- 
teenth Amendment,  329 
what  are,  333~335 
what  are  not,  335,  336 
State  citizenship  now  derived 
from  United  States  citi- 
zenship, 324, 325 
United    States    citizen    not 
necessarily  a  state  citizen, 
326 

United      States      citizenship 
originally     derived     from 
state  citizenship,  319-322 
United      States      citizenship 

paramount,  318,  319 
Coining  Money, 

by  States,  441,  442 
by  United  States,  202 
Colonies,    The, 

colonial     provisions     as     to 

Indians,  4-6 
gathering   of  representatives 

of,  3-8 

plans  for  confederation  of  5,  8 
union  under  the  Crown,  23 


INDEX 


673 


Combinations  in  restraint  of  trade. 

(See    Interstate    and    Foreign 

Commerce;  Police  Power  of  the 

States) 

Commander-in-Chief.      (See  The 

President) 

Commerce.     (See  Interstate  and 
Foreign  Commerce;   Intrastate 
Commerce) 
Common  Law,  the, 

extent  of  its  application  in 
civil    proceedings    in    the 
federal  courts,  1 12-1 17 
no  criminal  common  law  of 
the  United  States,  378,  379 
Compacts  by  States,  440 
Compulsory    Arbitration.       (See 
Interstate   and   Foreign   Com- 
merce) 

Compulsory  Draft  Law.  (See 
War  Powers  and  Control  of 
Military  Affairs) 

Compulsory  process  to  obtain 
witnesses.  (See  Federal  Crimi- 
nal Law) 

Confrontation     with     witnesses. 
(See    Federal    Criminal    Law; 
Judicial  Proceedings  and  Due 
Process) 
Congress, 

adjournment  of,  173 
bankruptcy  legislation,   337, 

338 
bicameral  character  of,  154, 

155 
compensation  of  members  of, 

173,  174  . 
control  of  jurisdiction  of  the 

Supreme  Court,  134 
control   of   pending   actions, 

139,  140 
delegation  of  legislative  power 

by,  149-154 
disability  of  members  to  hold 

other  offices,  176-179 
each  House  to  judge  of  elec- 
tions, returns  and  qualifi- 
cations of  its  members,  168, 
169 
House    of     Representatives. 

(See  that  title) 
immunities   of   members   of, 

174-176 

impeachment  by.     (See  Im- 
peachment) 

43 


imposition  of  non-judicial 
functions  upon  lower 
federal  courts  by,  136-139 

journals  to  be  kept,  167 

legislative  power,  143 
implied  powers,    144-149, 
204 

legislative  sessions  of,  166- 
168 

no  right  to  demand  advisory 
opinions,  134,  135 

patents,  copyrights  and  trade- 
marks, 338, 339 

postal  service,  339-341 

powers  of  the  two  houses,  155 

power  to  acquire  and  govern 
territories.  (See  Federal 
Territories) 

power  to  govern  the  District 
of  Columbia.  (See  The 
District  of  Columbia) 

power  to  legislate  for  the 
Indians.  (See  Indians) 

punishment  of  members  and 
of  those  guilty  of  con- 
tempts, 169-173 

record  of  notes,  167 

representatives.  (See  House 
of  Representatives) 

rules  of  proceedings  deter- 
mined by  each  House,  167 

Senate.     (See  that  title) 

Senators.    (See  The  Senate) 

taxation  and  other  fiscal 
powers  of.  (See  that  title) 

war  powers  of.      (See  War 
Powers    and    Control    of 
Military    Affairs) 
Conquered  Territory, 

power  to  govern,  62 
Constitution,  The, 

adoption  of,  13-16 

amending.  (See  Amending 
the  Constitution) 

comparisons  with  Constitu- 
tions of  Canada  and  Aus- 
tralia, 31-33 

critics  of,  21,  22 

District  of  Columbia  and,  306 

express  limitation  in,  upon  the 
powers  of  the  States,  437, 

438 

feelings  of  its  framers,  3,  19 
Gladstone's  comparison  with 

British  Constitution,  3 
interpretation  of,  144-149 


674 


INDEX 


Constitution,  The — Continued 

not  suspended  in  time  of  war. 
267,  268 

product  of  practical  experi- 
ence, 18-20 

put  into  operation,  16 

Revolutionary  character  of, 
16-18 

state  socialism  and,  536 

territories  and,  295-302 

text  of,  617-641 

Union     under.       (See    The 

Union) 
Constitutional  Convention,  The, 

amending  power  discussed  in, 
46-48 

character  of  Congress  dis- 
cussed in,  154 

compensation  of  members  of 
Congress  discussed  in,  173, 

174 
contract  clause  considered  in, 

45i 

election  of  Representatives 
and  Senators  discussed  in, 
156-159,  161-163 

forerunners  of,  4-11 

freedom  of  speech  discussed 
in,  355,  356 

Hamilton's  plan,  12 

holding  of  other  offices  by 
members  of  Congress  dis- 
cussed in,  176^178 

legal  tender  legislation  dis- 
cussed in,  200,  203 

meeting  of,  11-13 

New  Jersey  plan,  12 

Pinckney's  plan,  12 

presidential  provisions  dis- 
cussed in,  53,  54  n.,  60  n. 

purpose  of,  1 1 

revenue  measures  to  origi- 
nate in  the  House,  155 

review  of  legislation  discussed 
in,  117 

treaty-making  power  dis- 
cussed in,  70 

Virginia  plan,  12 
Contempts, 

power  of  courts  to  punish  for, 
140,  141 

power  of  houses  of  Congress 

to  punish  for,  169-173 
Continental  Congresses,  7,  8,  154 
Contracts.     (See  Impairment  of 

the  Obligation  of  Contracts) 
Copyrights,  338 


Corporations, 

as  citizens  under  the  constitu- 
tional judiciary  provisions, 
1 02 

as  citizens  under  the  inter- 
state   privileges    and    im- 
munities clause,  484 
conditional      admission      of 
foreign  corporations,  484- 
486 
due  process  clause  as  applied 

to  515 
equal    protection    clause    as 

applied  to,  486,  589-591 
excises   on   foreign   corpora- 
tions, 540,  541 

exclusion  of  foreign  corpora- 
tions, 483,  484 
federal  taxation  of,  199 
Counsel  in  criminal  trials.     (See 

Federal  Criminal  Law) 
Counterfeiting.          (See    Federal 

Criminal  Law) 
Court  of  Claims, 

appeals   to   Supreme    Court 

from  decisions  of,  99 
jurisdiction  of,  in,  112 
Courts  Martial.  (See  War  Powers 
and  Control  of  Military  Affairs) 
Criminal      Law.     (See      Federal 
Criminal  Law ;  Judicial  Proceed- 
ings and  Due  Process) 
Cruel  and  unusual  punishments. 
(See  Federal  Criminal  Law) 

D 

Declaration  of  Independence,  8, 

13 

Delegation  of  Legislative  Power, 

149-154 
District    Courts   of   the    United 

States, 

appeals  to  Circuit  Courts  of 
Appeals  from  decisions  of, 
no 
appeals   to    Supreme    Court 

from  decisions  of,  100 
Constitution  of,  90-92 
jurisdiction  of,  102-107 
when    exclusive    of    State 
courts    and    when    not 
exclusive,  102,  103 
removal  of  actions  from  state 
to  district  courts,  103, 104 
as  ground  for  revocation  of 
because  of  foreign  cor- 
poration, 484-486 


INDEX 


675 


District    Courts  of    the    United 
States —  Continued 
writs  issued  by,  105 
writ  of  habeas  corpus  may  be 

issued  by,  105-107 
writ   of   injunction   to   stay 
proceedings  in  state  courts, 
107 
District  of  Columbia, 

congressional  power  over,  305 
constitutional  guaranties  ap- 
plicable to,  306 
courts  of,  92 

appeals  to  Supreme  Court 
of  the  United  States  from 
decisions  of,  100 
delegation  of  legislative  power 

to,  151,  306 

due  process  and  the  govern- 
ment of,  414,  415 
establishment  of,  305 
is  not  a  State,  307 
Double  jeopardy.     (See  Federal 

Criminal  Law) 
Due  process, 

administrative    action    and, 

415,  416 

does  due  process  under  the 
Fifth  Amendment  include 
equal  protection?,  190,416- 
419 

eminent    domain    and     (See 
Eminent  Domain  and  Due 
Process) 
essential  significance  of,  511, 

512 

government  of  territories  and 
District  of  Columbia,  414, 

415 

impairment  of  contracts  and, 

413,414 
in  the  regulation  of  interstate 

and  foreign  commerce,  409, 

410 
judicial      proceedings     and. 

(See    judicial    proceedings 

and  due  process) 
legislation    does    not    neces- 
sarily constitute,  507-510 
meaning  of,  in  English  law, 

506,  507 
meaning    of,    in    the    Fifth 

Amendment,  406-408 
meaning  of  "person,"  "life," 

"liberty"  and  "property" 

in     due    process     clauses, 

408,  512,  513,  515 


notice  as  an  element  of,  409, 

513,  514 

opportunity  for  a  hearing  as 
an  element  of,  407,  513,  514 

persons  protected,  514,  515 

police  power  and.  (See  Police 
Power  of  the  States) 

regulations  of  interstate  com- 
merce which  transcend, 
409,  410 

taxation  and.  (See  Taxation 
and  Due  Process) 

usage  is  not  controlling,  510, 

war  powers  and,  414 
Duties, 

levied  by  the  federal  govern- 
ment. (See  Taxation  and 
Other  Fiscal  Powers  of 
Congress) 

levied  on  exports,  imports  and 
tonnage  by  the  states,  442,^ 
443 

E 

Eighteenth  Amendment, 

"concurrent  power"   of   en- 
forcement, 430,  615,  616 
constitutionality  of,  45-48 
criticisms  of,  49 
definition      of      intoxicating 

liquor,  429 

intoxicating      liquors      pro- 
hibited by,  429 
Eighth  Amendment,  401-403 
Eminent  domain, 

compensation  necessary,  419, 

549 
contract  rights  may  be  taken 

by,  419,  55° 

difference  of  Fifth  and  Four- 
teenth Amendment  as  to, 
419 

exercise  of,  by  Congress  for 
the  fulfilment  of  powers 
granted  to  it,  224 

franchises  may  be  taken  by, 

419,  550 

measure  of  compensation  in, 

420,  556,  557 

notice  in  condemnation  pro- 
ceedings, 421,  557,558 

opportunity  for  a  hearing  in 
condemnation  proceedings, 

421,  557 

police  power  distinguished 
from,  561 


INDEX 


Eminent  Domain — Continued 

power  of,  may  not  be  con- 
tracted away,  550,  551 

property  may  not  be  taken  for 
a  private  use,  419,  550 

property  subject  to  the  power 
of,  419,  550 

taking  by,  for  a  public  use 
constitutes  due  process, 

4*9,  549.  550 
use  of  highways  governed  by 

same  principles  as,  550 
use  of  state  courts  in  federal 
condemnation  proceedings, 
421 
what  is  a  public  use  in,  419, 

420,  551-554 
what    is    a    taking    in,    420, 

554-556 

Employers'  Liability  Acts.     (See 
Interstate  and  Foreign  Com- 
merce) 
Equal  protection, 

classification    which     consti- 
tutes, 593-6II 
classification     for     taxation, 

600-603 
classification  under  the  police 

power,  603-611 
employment  regulation,  610, 

611 
geographical  classifications, 

598-600 
hours  of  labor  legislation, 

605,  606 

income  taxes,  601-603 
inheritance  taxes,  600,  60 1 
protection    against    fraud, 
oppression,      loss,     and 
waste,  607-610 
protection  of  health,  safety, 
morals  and  good  order, 
604-607 

rate  regulation,  607 
reasonable  differences  not 

forbidden,  593-595 
segregation  of  races,  606, 

607 
special   assessments,    595- 

598 
foreign  corporations  entitled 

to, 486, 589^591 
individual  action  not  affected 
by  equal  protection  clause, 


is  it  guaranteed  under  the  due 
process  clause  of  the  Fifth 
Amendment?,  190 

persons  who  are  entitled  to, 

586-591 
purpose  of   equal  protection 

clause,  586 
rights   which   are  protected, 

59.2,  593 

special  assessments,  595-598 
state  action  only  is  affected 
byequalprotectionclause, 

5.91,  592 
action  of  state  officers,  591, 

592 
Espionage  Act.    (See  Freedom  of 

Speech  and  of  the  Press) 
Excessive   bail   and   fines.      (See 

Federal  Criminal  Law) 
Executive  action, 

judicial  control  of,  125-127 
Expatriation,  328 
Ex  Post  Facto  Laws, 

judicial    decisions    and    the 

ex  post  facto  rule,  450 
prohibition   directed   against 
federal  legislation,  382-384 
prohibition   directed   against 

the  States,  446 
what  are,  447~449 
which  are  not  penal  in  form, 

449 
Extradition, 

international,  80,  81 

kidnapping  of  fugitives,  81 
States  have  no  power  of,  80 
trial  of  extradited  person 

for  different  crime,  80 
interstate.      (See    Interstate 
Rendition  of  Fugitives) 


Federal  Criminal  Law, 
bills  of  attainder,  382 
compulsory  process  to  obtain 

witnesses,  399,  400 
confrontation  with  witnesses, 

401 
counsel  in  criminal  trials,  399, 

400 

counterfeiting,  380 
cruel    and    unusual    punish- 
ments, 401-403 
double  jeopardy,  395~399 
excessive  bail  and  fines,  401, 
402 


INDEX 


677 


Federal  Criminal  Law — Continued 
ex  post  facto  laws,  382 
impeachment.  (See  that  title) 
indictment,  384,  385 
jury  trial,  385,  386 
no   federal   common   law   of 

crimes,  378,  379 
offenses  against  the  law  of 

nations,  380 
piracies  and  felonies  on  the 

high  sea,  380 
place  of  trial,  382-384 
power  of  Congress  to  enact 

criminal  law,  379 
public  trial,  386,  387 
searches  and  seizures,   390- 

395 

self-incriminatipn,  387-390 
slave  trade  legislation,  380 
speedy  trial,  386,  387 
treason,  380,  381 
Federal  Territory, 

acquisition  of,  272-282,  306 

methods     of     acquisition, 

279-281 
constitutional  guaranties  and, 

295-302 
delegation  of  legislative  power 

to, 286-288 
disposition  of  lands  in,  288, 

289 

due  process  and  the  govern- 
ment of,  414,  415 
existing  federal  legislation  as 

applicable  to  new  territory, 

289-294 
incorporation    of    territories 

into    the    United    States, 

302-305 
power  of  Congress  to  govern 

territories,  282-289 
territory    acquired    by    the 
United  States: 

Alaska,  275 

California,  275 

Florida,  275 

Hawaii,  278,  279 

Louisiana  Purchase,     274, 

275 

New  Mexico,  275 
Northwestern      Territory, 

272-2^4,  307 
Panama  Canal  Zone,  275, 

276 

Philippines,  275 
Porto  Rico,  275 
Samoan  Islands,  275 


Fifteenth  Amendment, 

Congress    given    power    to 

enforce,  427 
directed  against  United  States 

and  the  States,  427,  614 
does  not  give  the  right  of 

suffrage,  427,  428,  613 
guarantees    equal    right    of 

suffrage  to  men,  427 
not  directed  against  acts  of 

individuals,  428,  613 
purpose  of,  612,  613 
Fifth  Amendment,  384,  385,  387- 

399,  406-421 

First  Amendment.    (See  Freedom 
of  Religion;  Freedom  of  Speech 
and    of   the    Press;    Right    of 
Assembly  and  Petition) 
Fiscal  powers  of  Congress.     (See 
Taxation     and     other     Fiscal 
Powers  of  Congress) 
Food  and  Drugs  Act.    (See  Inter- 
state and  Foreign  Commerce) 
Fourteenth  Amendment, 

apportionment  of  representa- 
tives under.    (See  House  of 
Representatives) 
citizenship    and    naturaliza- 
tion.   (See  that  title) 
congressional   power   to   en- 
force the  amendment,  425- 

427,  505 
due  process  clause.    (See  Due 

Process) 
equal  protection  clause.    (See 

Equal  Protection) 
exclusion  from  public  office  of 

persons  participating  in  the 

Rebellion,   424,  425,   504, 

privileges     and     immunities 
clause.      (See    Citizenship 
and  Naturalization) 
prohibitions   directed   to   all 
branches  of  state  govern- 
N  ments,  426,  427,  502-504 
prohibitions      not      directed 
against  actions  of  indivi- 
duals, 502-504 
provisions    with    regard    to 

Civil  War  debts,  425,  505 
Fourth  Amendment,  390-395 
Freedom  of  religion,  342-344 
Freedom  of  speech  and  of  the 

press, 

censorship,  349,  350,  371,  372 
common  law  as  to,  344-355 


678 


INDEX 


Freedom  of  speech  and  of  the  press 
— Continued 

struggle  against  repressive 
policy  of  the  government, 

.351-355 

during  the  colonial  period,  358 
enjoining    publications,    372, 

373 

in  Congress,  176 
interstate  commerce  and,  370 
postal  service  and,  370 
seditious  libel,  347~355,  358- 

373 
under  the  Constitution,  355- 

373 

Congress  not  excluded  from 
legislating,  356-358 

Cooley's  view,  363,  364 

discussion  in  the  Constitu- 
tional Convention,  355, 
356 

Espionage  Act  of  1917-18, 

364-373 

Hamilton's  view,  362 
Madison's  view,  361,  362 
Sedition  Law  of  1798,  359- 

362 

Story's  view,  363 
Full  faith  and  credit, 

as  applied  to  judgments,  476- 

481 
judgments       in       divorce 

actions,  478-481 
judgments  in  personam,  478 
judgments  in  rem,  477,  478 
Constitution  provision,  475 


H 


Habeas  corpus,  writ  of, 

may  be  issued   by   District 

Courts,  105-107 
may  be  issued  by  Supreme 

Court,  101 
safeguard  against  oppression, 

381,  3.82 
suspension  of,  by  President, 

84,85 
suspension  of,  in  time  of  war, 

270,  271 
Hours  of  labor, 

regulation  of,   by   Congress. 

(See  Interstate  and  Foreign 

Commerce) 
regulation  of,  by  the  States. 

(See  Police  Power  of  the 

States;  Equal  Protection)  • 


House  of  Representatives.  (See 
also  Congress) 

choice  of  speaker  and  other 
officers,  1 60 

election  of  Representatives, 
156-159 

qualifications  of  Representa- 
tives, 159,  1 60 


Impairment  of  the  obligation  of 
contracts, 

constitutional  provision  as  to, 
451 

contracts  between  individ- 
uals, 471-473 

contracts  to  which  a  state  is  a 
party,  456,  457 

due  process  and,  under  the 
Fifth  Amendment,  413,  414 

franchises  as  contracts,  457- 

459 
definition   of   a   franchise, 

459  n. 

grants   which   are   not   con- 
tracts, 459,  460 
liberal        interpretation    by 
Supreme  Court  of  contract 
clause,  452,  453 
original  purpose  of  constitu- 
tional provision  as  to,  451, 
452 

reservation   of  the  right  to 
alter  charter  contracts,  474 
States'     power     to     exclude 
themselves   by   contract 
from  exercise  of  govern- 
mental powers,  460-471 
municipalities  have  no  in- 
herent power  to  bind  the 
state,  462 

police  powers  which  cannot 
be  contracted  away,  464, 

465 

rate  contracts,  461,  465, 466 

states'  contracts  subject  to 

power  of  eminent  domain, 

461,462 

strict  construction  in  favor 

of  the  public,  462 
tax  contracts,  460,  466-468 
tendency  to  limit  the  power, 

461,  469-471 

what  constitutes,  453-456 
Impeachment, 

Chief  Justice  presides  when 
President  is  tried,  85 


INDEX 


679 


Impeachment — Continued 

grounds    for    impeachment, 

87-89 
House  of  Representatives  has 

power  to  impeach,  85 
penalties  upon  conviction,  85, 

86 

persons  subject  to  impeach- 
ment, 86,  87 

Senate  tries  impeachments,  85 
Income  taxes.     (See  Equal  Pro- 
tection;    Taxation     and     Due 
Process;    Taxation   and    Other 
Fiscal  Powers  of  Congress) 
Indians, 

citizenship  of,  316,  325,  326 
colonial  provisions  as  to,  4-6 
commerce  with,  215,  216 
congressional  power  of  legis- 
lation for,  315-317 
constitutional    provisions    as 

to,  312,  313 
naturalization  of,  316 
rights  to  lands  occupied  by, 

3i6,  317 

status  of  Indian  tribes,  313 
independent  of  state  con- 
trol, 313,  314 
treaties  with,  3 14 
Indictment, 

due  process  does  not  require, 

409,  529,  530 

required  in  federal  prosecu- 
tions, 384,  385 

Inheritance    taxes.      (See    Equal 
Protection;  Taxation  and  Due 
Process;   Taxation   and    Other 
Fiscal  Powers  of  Congress) 
Injunction, 

enjoining   breach   of   service 

contracts,  498 

enjoining  publications  as 
abridgement  of  freedom  of 
speech  and  of  the  press, 
372,  373 

issued  by  federal  courts  to 
stay  proceedings  in  state 
courts,  107 
to  control  executive  action, 

125,  126 

to  prevent  enforcement  of  un- 
constitutional statutes,  95 
Insular  cases,  289-305 
International  Affairs.      (See  Ex- 
tradition ;        Interstate        and 
Foreign  Commerce;  The  Presi- 
dent ;  Taxation  and  Other  Fiscal 


Powers    of    Congress;    Treaty 
Making  Power) 
Interstate  and  Foreign  Commerce, 

Adamson  Law,  221-224 

Child  Labor  Act,  231-233 

combinations  in  restraint  of, 
217-220 

combinations  of  labor,  219 

commencement  and  termina- 
tion of ,  211-214 

commerce — what  is  meant  by 
the  term,  207-211 

compulsory  arbitration  of 
labor  disputes  in,  221-224 

congressional  power  over 
commerce  with  the  Indian 
tribes,  215,  216 

congressional  power  over  for- 
eign commerce,  214,  215 

discrimination  against  per- 
sons because  of  membership 
in  labor  organizations,  220, 

221 

divesting  goods  of  interstate 
character,  234 

Employers'  Liability  Acts, 
227-229,  241 

enforcement  of  labor  con- 
tracts in,  501 

federal  incorporation,  224 

federal  licensing  of  interstate 
business,  225 

Food  and  Drugs  Act,  230,  231 

freedom  of  speech  and,  370 

incidental  regulation  of  intra- 
state  commerce,  235-242 

Interstate  Commerce  Act, 
216,217 

monopolies,    217-220 

"Original  package"  doctrine, 
213,214 

police  regulations  under  the 
commerce  clause,  225-233 

protection  of  interstate  trans- 
portation and  traffic,  216- 
225 

regulation  of  hours  of  labor 
in,  222,  226,  227 

regulation  of,  under  the  tax- 
ing power,  183, 184 

regulations  of,  which  tran- 
scend due  process,  409,  410 

regulation  of  wages  in,  221- 

224 
regulation  of  rates,2 1 6,235-242 

relation  of  commerce  and  tax- 
ation provisions,  193,  194 


68o 


INDEX 


Interstate  and  Foreign  Commerce, 
— Continued 

safety  appliance     acts,  225, 

226,  241 
Sherman  Anti-Trust  Act,  217- 

220 

State  police  legislation  affect- 
ing, 242-248,  562,  563 
state  taxation  affecting,  248- 

254,  540 

strikes  interrupting,  220-224 
termination  of,  212-214 
the  commerce  clause  and  its 

origin,  206,  207 
Webb-Kenyon  Law,  234 
White  Slave  Act,  229-230 
Interstate  Commerce  Act.     (See 
Interstate   and   Foreign    Com- 
merce) 

Interstate  privileges  and  immuni- 
ties, 
constitutional    provisions    as 

to,  482 
corporations  not  entitled  to, 

483-486 
private  rights  only  included, 

486 

what  are,  483 

Interstate  rendition  of  fugitives, 
constitutional  provision,  487 
duty  not  enforceable  by  man- 
damus, 488 
federal  statutory  provisions, 

487,  488 
judicial  review  of  arrest  and 

surrender  of  fugitives,  489, 

491 
kidnapping  of  fugitives,  491, 

492 
return    of    persons    held    to 

service,  492, 493 
state    statutory    provisions, 

489 
trial  of  extradited  person  for 

different  crime,  492 
Intrastate  commerce, 

Congress   may  not   legislate 

for,  212 
incidental  regulation  of,   by 

Congress  under  its  power 

over  interstate  commerce, 

235-242 
regulation    of,    by    Congress 

in  time  of  war,  269,  270 
Involuntary  servitude,  498-500 


Judgments, 

entitled    to    full    faith    and 

credit,  476-481 
actions  in  personam,  478 
actions  in  rent,  477,  478 
divorce  actions,  478-481 
Judicial     proceedings     and     due 

process, 
actions  in  personam,  409, 516- 

5.27. 

jurisdiction  of  non- 
residents, 516,  517 

requirement  that  non-resi- 
dents appoint  an  agent  to 
receive  service,  517,  518 

service  upon  domestic  cor- 
porations, 527 

service  upon  residents 
temporarily  without  the 
State,  524-527 

service  upon  residents  who 
are  within  the  State, 

5197524 

actions  in  rent,  409,  527,  528 
criminal  trials,  409,  529-532 

appeals,  530,  531 

arraignment,  530 

confrontation  with  wit- 
nesses, 409,  530 

indictment,  409,  529,  530 

information,  530 

jurisdiction  of  court,  529 

jury  trial,  409,  530 

notice,  409,  529 

opportunity  for  hearing 
and  to  introduce  evi- 
dence, 409,  529 

presence  during  trial,  409, 

53i 

presence  upon  appeal,  409 
self-incrimination,  409,  530 
waiver     of     constitutional 

rights,  531,  532 
divorce  actions,  528,  529 
Judiciary,  the, 

Admiralty  and  Maritime  juris- 
diction.    (See  that  title) 
advisory  opinions,  134,  135 
application  of   the  common 
law  in  federal  courts,  112- 

117,378,379 

appointment       of       federal 

judges,  91 
attitude     towards     political 

questions,  127-132 


INDEX 


68 1 


Judiciary,  the — Continued 
circuit  courts,  91,  92 
circuit    courts    of     appeals. 

(See  that  title) 

confined  to  determination  of 
cases  and  controversies, 

132-134 

constitution  of,  90-92 

contempts  and  their  punish- 
ment, 140,  141 

control  of  executive  action  by, 
125-127 

Court  of  Claims.  (See  that 
title) 

District  Courts.  (See  that 
title) 

imposing  non-judicial  func- 
tions upon  federal  courts, 

134-139 
judicial  review  of  legislation, 

117-125 

legislative  control  of  pending 
actions,  139-140 

power  of  courts  to  suspend 
sentence,  142 

provisions  of  Articles  of  Con- 
federation, 90 

Supreme  Court.  (See  that 
title) 

tenure  of  federal  judges,  90, 91 
Jury  trial, 

civil  actions  in  federal  coorts, 
404,  405 

due  process  and,  409,  530 

federal  prosecutions,  385,  386 


Labor, 

combinations  of,  in  restraint 
of  commerce,  219 

discrimination  against  mem- 
bers of  labor  organizations, 

220,  221,  585 

hours  of  labor,  577-581 
minimum  wage,  581,  582 
regulation     of     employment 

agencies,  584 

strikes  which  interrupt  inter- 
state commerce,  220-224 
workmen's  •      compensation, 


582,  584 
)f  r 


Law  of  nations, 

offenses        against.          (See 

Federal  Criminal  Law) 
Legal  tender  notes, 

power  of  the  federal  govern- 
ment to  issue,  200-204 


Liberty, 

meaning  of,  in  due  process 

clauses,  408,  513 
Life, 

meaning   of,  in   due  process 
clauses,  408,  512 

M 

Mandamus, 

interstate  rendition  not  en- 
forceable by,  488 
to  control  executive  action, 

125-127 

Martial  Law.  (See  War  Powers 
and  Control  of  Military 
Affairs) 

Military  affairs.    (See  War  Power 
and  Control  of  Military  Affairs) 
Militia,  the,  259,  260,  376,  444 
Monopolies.     (See  Interstate  and 
Foreign      Commerce;      Police 
Power  of  the  States) 


N 


National  Government,  the.  (See 
special  headings  such  as  Con- 
gress, Federal  Territory,  Inter- 
state Commerce,  the  Judiciary, 
the  President,  Taxation,  War 
Power,  etc.) 
Nationals.  (See  Citizenship  and 

Naturalization) 
Naturalization.     (See  Citizenship 

and  Naturalization) 
Nineteenth  Amendment, 

Congress     given     power     to 

enforce,  431 

constitutionality  of ,  431,  615 
directed  against  United  States 

and  the  States,  431 
does  not  give  the  right  of 

suffrage,  431 
guarantees    equal    right    of 

suffrage,  431 

language  of  Fifteenth  Amend- 
ment adopted,  431,  614 
not  directed  against  acts  of 

individuals,  431 
Ninth  Amendment,  437  n. 
Northwest    Territory,     272-274, 

307 

ordnance  for   the   government 
of,  283,  307 


682 


INDEX 


Operating  expenses.     (See  Police 

power  of  the  States) 
Ordinance  for  the  government  of 

the  Northwest  Territory,  283, 

307 


Patents,  338,  339 
Peonage,  498-500 
Person, 

meaning  of,  in  due  process 

clauses,  408,  514,  515 
Petition.    (See  Right  of  Petition) 
Piracy.      (See   Federal    Criminal 

Law) 
Police  Power  of  the  States, 

aesthetic  considerations  and, 

567,  568 
combinations  in  restraint  of 

trade,  576 

due  process  and,  559-585 
eminent  domain  distinguished 

from,  561 
employment  regulated  under, 

577-585 

employment  agencies,  584 
hours  of  labor,  577-581 
membership    in    labor   or- 
ganizations, 585 
minimum  wage,  581,  582 
workmen's    compensation, 


582-584 
mal  pi 


equal  protection  and,  603-61 1 
extent   of   interference   with 

property  rights  under,  561, 

562 
fraud  guarded  against,  574- 

576 

good  order,  563-565 
health,  563 
interstate  commerce  affected 

by  the  exercise  of,  242-248, 

562,  563 
loss     and     waste     guarded 

against,  576,  577 
monopolies,  576 
morals,  563,  566,  567 
oppression  guarded  against, 

576 
rates,  568-574 

capital  upon  which  return 
must   be  allowed,    571- 

573 
limits  of  right  of  regulation, 

570 


operating    expenses,    573, 

574 
public    service    businesses, 

568-570 
return  upon  "fair  value" 

of   property   used,    570, 

571 
review  of  legislative  rates, 

570 
relation  of,  to  due  process, 

559-561 

reserved  to  the  state  under 
the     Tenth     Amendment, 
145,  H6,  559-561 
safety,  563,  564 
service  regulated  under,  574 
Police  regulations  by  the  federal 

government, 
tax  laws  in  the  nature  of, 

184,  185 
under  the  commerce  clause, 

225-233 
Political  questions, 

attitude    of    federal    courts 

towards,  127-132 
Postal  Service, 

constitutional   guaranties   as 

applied  to  control  of,  341 
constitutional  provision  as  to, 

339 

construction  of  national  high- 
ways   based   upon  control 

of,  339,  340 
control  of  interstate  highways 

partly  based  upon  control 

of,  224 
determination  of  matter  to  be 

carried,  340,  341 
use  of  injunction  to  protect, 

340 

use    of    military    forces    to 

protect,  340 
freedom  of  speech  and  of  the 

press,  341,  370 
President,  the, 

as  Chief  Executive,  67,  68 
as    commander-in-chief,    62, 

261 

Cabinet  of,  65,  66 
compensation,  61 
convening  and  adjourning 

Congress,  84 
declaration    of    existence    of 

state  of  war  or  peace  by,  62 
direction      of     international 

affairs,  77-80 
election,  55-59 


INDEX 


683 


President,  the — Continued 

impeachment  of.     (See  Im- 
peachment) 
international  extradition  by, 

80,  8 1 

judicial  control  of,  125-127 
oath  of  office,  61 
power   of   appointment   and 

removal,  63-65 
power  to  reprieve  and  pardon, 

68-70 

presidential  messages,  81 
proposal  of  legislation  by,  8 1 
qualifications,  53,  54 
signing  of  bills  by,  81-84 
suspension  of  writ  of  habeas 

corpus  by,  84,  85 
term  of  office,  53 
treaty  making  power  of.    (See 

Treaty  Making  Power) 
vacancy  of  office,  59-61 
veto  power  of,  81-84 
Presidential  electors,  55~59 
Privileges  and  immunities.     (See 
Interstate  Privileges  and   Im- 
munities),   of    United     States 
citizenship.      (See    Citizenship 
and  Naturalization) 
Prohibition.        (See     Eighteenth 

Amendment) 
Property, 

meaning  of,  in  due  process 

clauses,  408,  513 
Public  Service, 

regulation  of,  under  the  police 
power,  568-574 


Q 


Quartering   troops.      (See   Third 
Amendment) 


R 


Rate  regulation, 

congressional.  (See  Inter- 
state and  Foreign  Com- 
merce) 

State.     (See    Equal    Protec- 
tion; Police  Power  of  the 
States) 
Referendum, 

constitutional      amendments 
not  subject  to  referendum 
pro  visions,  4 1 
Religious  freedom.    (See  Freedom 


Republican  form  of  government, 
courts    will    not    determine 

whether  a  State  has,  130 
guarantied  to  States,  444,  445 
Restraint  of  trade.     (See  Inter- 
state and  Foreign  Commerce; 
Police  Power  of  the  States) 
Right  of  assembly,  373,  374 
Right  of  petition,  373,  374 


Safety  Appliance  Acts.  (See 
Interstate  and  Foreign  Com- 
merce) 

Sales  in  bulk  laws,  575 
Searches  and  seizures.     (See  Fed- 
eral Criminal  Law) 
Second  Amendment, 

necessity   of    well   regulated 

militia  recognized,  375 
control  of  militia  by  federal 
and  state  governments,  376 
right  to  keep  and  bear  arms, 

375 

Sedition    Law    of     1798.       (See 
Freedom  of  Speech  and  of  the 
Press) 
Seditious  libel.     (See  Freedom  of 

Speech  and  of  the  Press) 
Segregation.     (See  Equal  Protec- 
tion). 
Self-incrimination, 

constitutional  provision  af- 
fecting the  federal  govern- 
ment. (See  Federal  Crimi- 
nal Law) 

State  legislation  and.  (See 
Judicial  Proceedings  and 
Due  Process) 

Senate,  the.    (See  also  Congress) 
amending  power  not  to  be 
exercised  to  destroy  equal 
representation  in,  45 
election  and  terms  of  Sena- 
tors, 161-164 
equal  representation  of  States 

in,  162,  163 
officers  of,  165,  166 
qualifications     of     Senators, 

164,  165 
Seventeenth        Amendment, 

162,  428 

share  in  appointments,  63-65 
share  in  treaty-making,  70,  71 


684 


INDEX 


Separation  of  powers, 

the  doctrine  of,  139,  140,  143, 

144 
Seventeenth  Amendment, 

provides  for  popular  election 

of  Senators,  162,  428 
Seventh  Amendment,  404,  405 
Sherman  Anti-Trust  Act.      (See 
Interstate  and  Foreign  Com- 
merce) 
Sixteenth  Amendment, 

authorizes     federal     income 

taxes,  1 88,  428 
Sixth  Amendment,  383,  384,  399- 

401 
Slavery, 

amendments    not    to    affect 
certain  provisions  with  re- 
gard to,  44 
history  of.     (See  Thirteenth 

Amendment) 
return    of    persons    held    to 

service,  492,  493 
Thirteenth     Amendment. 

(See  that  title) 
South  Africa, 

election  and  qualifications  of 
members  of  the  lower  house, 
156  n. 

election  and  qualifications  of 
members     of     the     upper 
house,  161  n. 
Special  Assessments.    (See  Equal 

Protection). 
Stamp  Act  Congress,  6 
States,  the, 

admission  of  new  States,  307- 

312 
attempts  to  limit  the  powers 

of  new  States,  308-312 
citizenship.    (See  Citizenship 

and  Naturalization) 
contracts  of.      (See   Impair- 
ment of  the  Obligation  of 
Contracts) 
District  of  Columbia  is  not  a 

state,  307 
indissoluble  union  under  the 

Constitution,  28-30 
insolvency  legislation  of,  338 
judicial  proceedings  to  which 

they  are  parties,  92-98 
limitations    upon    their    war 

powers,  255 

police  power.  (See  Equal 
Protection ;  Police  Power  of 
the  States) 


political  limitation  upon,  440- 

445 

coining  of  money,  441,  442 
compacts,  440 
duties  on  exports,  imports 

and  tonnage,  442,  443 
emitting  bills  of  credit,  441, 

442 

engaging  in  war,  444 
keeping  troops,  444 
letters  of  marque  and  re- 
prisal, 441 
nobility  not  to  be  created, 

442 

Republican  form  of  govern- 
ment required,  444,  445 
treaties,  440 

power  of,  before  adoption  of 
the  Tenth  Amendment, 
435,  436 

powers  of,  expressly  limited 
by   the   Constitution   and 
federal  statutes,  437,  438 
review  of  state  decisions  by 
Supreme     Court     of     the 
United  States,  101 
review  of  State  legislation  by 

federal  courts,  121,122 
rights  of  new  States,  438 
scope  of  discussion  with  re- 
gard to,  438,  439 
secession,  28 

States'  Rights  doctrine,  28 
taxation.    (See  Equal  Protec- 
tion;   Taxation    and    Due 
Process;  Taxation  by  the 
States) 

taxes  levied   by,   interfering 
with   the   federal   govern- 
ment, 539,  540 
Tenth  Amendment  and.    (See 

Tenth  Amendment) 
under  the  Articles  of  Con- 
federation, 27 

under  the  Constitution,  27 
Strikes   in   interstate   commerce, 

220-224 

Succession    taxes.       (See    Equal 
Protection;  Taxation  and  Due 
Process;    Taxation    and    Other 
Fiscal  Powers  of  Congress) 
Suffrage, 

equal  right  of,  guaranteed  to 
men  by  the  Fifteenth 
Amendment,  427,  612-614 


INDEX 


685 


Suffrage — Continued 

equal  right  of,  guaranteed  to 
women  by  the  Nineteenth 
Amendment,  430,  431,  614, 

615 

Fourteenth  Amendment  did 

not  give  to   women   as   a 

privilege  of  United  States 

citizenship,  431 
Supreme    Court    of    the    United 

States, 
appellate  jurisdiction  of,  98- 

102 

constitution  of,  90,  91 
control  by  Congress  of  the 

jurisdiction  of,  134,  135 
controversies     to     which     a 

State  is  a  party,  92-98 
controversies     to     which     a 

state  officer  is  a  party,  94, 

95 

controversies  to  which  the 
United  States  are  a  party, 
94-96 

original  jurisdiction  of,  92-98 
writ  of  habeas  corpus  may  be 

issued  by,  101 
Suspending  sentences,  142 


Taxation  and  due  process, 

chattels  subject  to  taxation, 

412,  536,  537 
choses  in  action  subject  to 

taxation,  412,  541-544 
excises   on   foreign    corpora- 
tions, 540,  541 

exemption  from  taxation,  536 
franchises  subject  to  taxation, 

537-539,  540 
income  taxes,  544 
inheritance  taxes,  544-547 
land  subject  to  taxation,  412, 

536 
notice  as  an  element  of  due 

process,  547 
opportunity  for  a  hearing  as 

an  element  of  due  process, 

547,  548 

proper  purposes  for  taxation, 
.  181,  182,  410,  411,  533-536 
state  taxation  interfering  with 

the    federal     government, 

539,  540 

taxation    which    constitutes 
due  process,  533 


"unit  rule"  in  taxation  of 
intangible   property,    537- 
539 
Taxation   and   equal   protection. 

(See  Equal  Protection) 
Taxation  and  other  fiscal  powers 
of  Congress, 

amount  which  may  betaken 
in  taxes,  180 

appropriation  by  law  neces- 
sary to  the  expenditure 
of  public  moneys,  204,  205 

borrowing  money,  200 

capitation  taxes,  185 

coining  money,  202 

constitutional  purposes  of 
taxation,  181,  182 

corporation  tax,  199 

debts  for  which  taxes  may  be 
levied,  182 

debts  incurred  in  the  Civil 
War,  181  n. 

debts  incurred  under  the  Con- 
federation, 181  n. 

direct  taxes,  185-190 

distinction  between  direct 
taxes  and  excise  taxes,  187 
income  taxes  are,  186,  187 
succession  taxes  are  not,  186 
what  are,  185-187 

due  process  in  taxation,  410- 
413.  (And  see  Taxation 
and  Due  Process) 

duties,  190 

excise  taxes,  187,  190 

imposts,  190 

income  taxes,  186,  187,  188, 
428 

interstate  and  foreign  com- 
merce regulated  under,  183, 
184 

legal  tender  notes,  200-204 

power  of  Congress  to  tax,  180 

property  subject  to  taxation, 
180 

publicity  required  in  the  ex- 
penditure of  public  moneys, 
204,  205 

relation  of  taxation  and  com- 
mercial provisions,  193, 194 

Sixteenth  Amendment,  188, 
428 

stock  dividends  are  capital 
for  purposes  of  taxation, 
188,  189 

succession  taxes,  186,  189, 
190,  191 


686 


INDEX 


Taxation  and  other  fiscal  powers 

of  Congress — Continued 
*-^  taxation  for  regulation,  183- 

185 
taxation  of  incomes  of  federal 

officers,  200 
taxation    of    state    agencies, 

197-199 

taxes  on  exports,  194-197 
^^  uniformity  in  taxation,  190- 

194 
Taxation  by  the  States, 

due  process  and.    (See  Taxa- 
tion and  Due  Process) 
interfering  with  the  federal 

government,  539,  540 
interstate       commerce       as 

affected  by,  248-254 
Tenth  Amendment, 

comparison  with  the  provision  s 
in  the  Canadian  and  Aus- 
tralian constitutions,  31,  32 
effect  upon  the  interpretation 
of  the  Constitution,    144, 

145 
forerunner  of,  in  the  Articles 

of  Confederation,  144 
Peletiah    Webster's    sugges- 
tion for  division  of  powers, 

437  n. 
powers    guaranteed    to    the 

states  by,  436,  437,  559 
powers  of  the  States  before 

the  adoption  of,  435,  436 
regulation  of  interstate  and 

intrastate  commerce  under 

the,  235-242 

Territories.     (See  Federal  Terri- 
tory) 

Third  Amendment, 

quartering  troops  in  houses 
without  the  owners'  con- 
sent, 377 
Thirteenth  Amendment, 

adoption  of,  497 

congressional  power  of  legisla- 
tion under,  423,  424 

history  of  slavery  in  the 
United  States,  494-497 

operates  upon  federal  and 
state  government  and  upon 
individuals,  422 

peonage  and  other  involun- 
tary servitude,  498-500 

purpose  of,  497,  498 


services  which  may  be  con- 
stitutionally enforced,  500, 
SGI 

territorial  extent  of  its  opera- 
tion, 422 

Trade-Marks,  338,  339 
Treason.     (See  Federal  Criminal 

Law) 
Treaty  making  power,  the, 

appropriation    of    funds    by 

treaty,  71 
difficulty    of    ratification    of 

treaties,  70 

discussion   in   the   Constitu- 
tional Convention,  70 
constitutional       prohibitions 
cannot  be  violated  under, 

framework  of  government 
could  not  be  changed  by,  71 

ordinary  field  of  congressional 
legislation  and,  72 

ordinary  field  of  state  legisla- 
tion and,  74-77 

President's  part  in  treaty- 
making,  70,  71 

provisions  for  payment  of 
money,  72 

scope  of  this  power,  71-77 

Senate's  part  in  treaty- 
making,  70,  71 

states  have  no,  440 

treaties  are  the  supreme  law 
of  the  land,  74 

treaties  with  Indians,  314 

under  the  Articles  of  Con- 
federation, 70 


Unconstitutional  statutes, 

effect  of  judicial  declaration 
that  statutes  are  uncon- 
stitutional, 123,  124 

injunctions  to  prevent  en- 
forcement of,  95 

right    of    federal    courts    to 
declare  statutes  unconsti- 
tutional, 117-123 
Union,  the, 

a  "more  perfect  union  "  under 
the  Constitution,  26-28 

colonies  united  under  the 
Crown,  23  — • 

doctrine  of  States'  Rights,  28 

for  defense,  24 


INDEX 


687 


Union,  the — Continued 

indissoluble  union  under  the 

Constitution,  28-30 
secession,  28 

under  the  Articles  of  Con- 
federation, 24-26 
weaknesses  of  the  Articles  of 

Confederation,  26 
United  States,  the, 

actions  brought  by  the  United 

States,  94-96 
can  only  be  sued  with  their 

consent,  ill 
Unit  rule  in  taxation,  537-539 


Vice-President,  the, 

ccmpensation,  61 

election,  55~59 

oath  of  office,  61 

qualifications,  54 

succession     to     presidential 
office  by,  59,  60 

term  of  office,  53 

vacancy  of  offices  of  President 

and  Vice-President,  60,  61 
Veto  power, 

possessed  by  federal  govern- 
ment in  Canada,  31 

President's  veto  power,  81-84 

W 


Wages, 

regulation  of  wages  by  Con- 
gress. (See  Interstate  and 
Foreign  Commerce) 

regulation  of  wages  by  the 
States.  (See  Equal  Protec- 


tion; Police  Power  of  the 
States) 

War  powers  and  control  of  mili- 
tary affairs, 

compulsory  military  service, 
258-260,  500 

compulsory  Draft  Law,  259 

control   of   highways   under 
the,  224 

courts  martial,  261-267 

declaration  of  war,  255 

due  process  and,  414 

establishment  of  peace,  255- 

257 

legal  tender  legislation  sup- 
ported under  the,  202,  203 

letters  of  marque  and  reprisal, 

255 
limitations  upon  the  States, 

war  powers,  255 
martial  law,  261 
militia,  259,  260,  376 
power  of  States  to  engage  in 

war,  444 
power    of    States    to    keep 

troops,  444 
President's  exercise  of.     (See 

the  President) 
raising  military  forces,  257 
spheres  of  authority  of  Presi- 
dent and  Congress  in  the 
control  of  military  forces, 
261 
unusual  powers  in   time  of 

war,  267-271 

Webb-Kenyon  Law.     (See  Inter- 
state and  Foreign  Commerce) 
Weights  and  measures,  341 
White  Slave  Act.    (See  Interstate 

and  Foreign  Commerce) 
Workmen's  Compensation,   582- 
584 


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